FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
DIONNE MATTHEW LACEY APPELLANT
AND
THE ATTORNEY-GENERAL OF QUEENSLAND RESPONDENT
Lacey v Attorney-General of Queensland [2011] HCA 10 7 April 2011 B40/2010
ORDER
1. Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 11 September 2009 and, in its place, order that the appeal to that Court be dismissed.
On appeal from the Supreme Court of Queensland
Representation
B W Farr SC with J A Fraser and A D Scott for the appellant (instructed by Howden Saggers Lawyers)
W Sofronoff QC, Solicitor-General of the State of Queensland with E S Wilson and G J D del Villar for the respondent (instructed by Crown Solicitor (Qld))
Interveners
S J Gageler SC, Solicitor-General of the Commonwealth with A M Dinelli intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))
M G Sexton SC, Solicitor-General for the State of New South Wales with L A Babb SC and J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
M G Hinton QC, Solicitor-General for the State of South Australia with K Hodder intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lacey v Attorney-General of Queensland
Criminal law – Appeal – Appeal against sentence – Appeal by Crown – Where s 669A(1) of Criminal Code (Q) permitted appeal by Attorney-General against sentence and provided that appellate court "may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper" – Where appellate court increased sentence without identifying any error by sentencing judge – Whether Crown must demonstrate error by sentencing judge before discretion to vary sentence enlivened.
Words and phrases – "appeal", "unfettered discretion".
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ.
Introduction
By s 669A(1) of the Criminal Code (Q) the Attorney-General of Queensland may appeal to the Court of Appeal of the Supreme Court of Queensland[1] against any sentence imposed by a trial court or a court of summary jurisdiction dealing with an indictable offence. The court hearing such an appeal "may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper."[2]
[1]Until 1991, the appeal lay to the Court of Criminal Appeal, which was established by ss 3 and 5 of the Criminal Code Amendment Act 1913 (Q), inserting s 668A into the Criminal Code (Q). The appeal to the Court…
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
Lacey v Attorney-General (Qld) [2011] HCA 10
Case
[2011] HCA 10
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by the appellant, Lacey, against a decision of the Court of Appeal of the Supreme Court of Queensland. The dispute arose from the Attorney-General's appeal against the sentence imposed on Lacey for manslaughter. The Court of Appeal had increased Lacey's sentence, and the central question before the High Court was whether the Attorney-General could appeal a sentence and have it varied under s 669A(1) of the *Criminal Code* (Qld) without demonstrating an error by the sentencing judge.
The High Court was required to determine the scope of the "unfettered discretion" granted to an appellate court under s 669A(1) of the *Criminal Code* (Qld) when hearing an appeal by the Attorney-General against sentence. Specifically, the Court had to decide whether this discretion could be exercised to vary a sentence even in the absence of any identified error or misapplication of principle by the sentencing judge.
The High Court held that the construction of s 669A(1) by the Court of Appeal was erroneous. The Court reasoned that while the discretion conferred by the section was broad, it was not absolute and was not intended to allow the appellate court to simply substitute its own view of the appropriate sentence for that of the sentencing judge without identifying a legal error. The High Court stated that the power to vary a sentence under s 669A(1) was enlivened by the presence of error, whether demonstrated or inferred, on the part of the sentencing judge. The appeal was allowed, the order of the Court of Appeal was set aside, and in its place, an order was made dismissing the Attorney-General's appeal to that Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 11 September 2009 and, in its place, order that the appeal to that Court be dismissed.
Background
Background to the litigation
The question in this appeal is whether the Court of Appeal has the power under s 669A(1) to vary a sentence absent any demonstrated or inferred error on the part of the sentencing judge. The Court of Appeal answered that question in the affirmative. It held that the "unfettered discretion" conferred by s 669A(1) meant that the Court[3]:"in exercising its discretion must have regard to the sentence imposed below, but come to its own view as to the proper sentence to be imposed. In doing so, it must act in conformity with the principles relevant to the exercise of judicial power."Based on that construction of s 669A(1) the Court of Appeal, by majority[4], increased the sentence imposed upon the appellant for the crime of manslaughter[5]. The construction was erroneous. For the reasons that follow the appeal should be allowed, the order made by the Court of Appeal set aside and, in its place, an order dismissing the appeal to that Court made.[3]R v Lacey; Ex parte Attorney-General (Qld) (2009) 197 A Crim R 399 at 416 [147].[4]de Jersey CJ, Keane, Muir and Chesterman JJA; McMurdo P dissenting.[5](2009) 197 A Crim R 399 at 418 [156].Factual and procedural background On 6 May 2009, the appellant was convicted in the Supreme Court of Queensland of the offence of manslaughter. The Crown Prosecutor submitted that the appropriate sentence was 13 years before deducting two years served by the appellant while on remand. On 13 May 2009, the appellant was sentenced to 10 years imprisonment and declared to have been convicted of a serious violent offence. The trial judge said he would have sentenced the appellant to 12 years imprisonment but took into account two years which he had served on remand. The appellant appealed against his conviction and applied for leave to appeal against his sentence. The Attorney-General also appealed against the sentence on the alternative grounds that it was "inadequate" or "manifestly inadequate". The particulars of both grounds of the Attorney-General's appeal were that:.the sentence failed to reflect adequately the gravity of the offence generally and in this case in particular;.the sentence failed to take sufficiently into account the aspect of general deterrence; and .the sentencing judge gave too much weight to factors going to mitigation.Departing from the position taken by the Crown Prosecutor in sentencing submissions before the trial judge, the Solicitor-General of Queensland, appearing for the Attorney-General, submitted in the Court of Appeal that the appropriate range was 15 to 18 years imprisonment (before deduction for time served on remand). Thus, on the Attorney-General's submission, the appropriate range was 13 to 16 years after the deduction. The appellant's appeal against conviction and application for leave to appeal against sentence were dismissed. The Attorney-General's appeal against sentence was allowed and the sentence increased to 11 years. On 24 June 2010, the appellant was granted special leave to appeal against the decision of the Court of Appeal allowing the Attorney-General's appeal.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
(dissent)
HEYDON J
(dissent)