Lakeland v The Queen - [1994] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MlSS of 1993
B e t w e e n -
DAVID PAUL LAKELAND

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 24 MARCH 1994, AT 2.25 PM

Lakeland

24/3/94

MR D. GRACE:

If the Court pleases, I appear with my learned

friend, MR G.F. MEREDITH, on behalf of the
applicant. (instructed by Andrew Irvine Crockett,
Director of Legal Aid (Victoria))

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

MS K.E. JUDD for the Crown. (instructed by
J.M. Buckley, Solicitor to Director of Public
Prosecutions (Victoria))

MASON CJ:	Mr Grace?
MR GRACE:	It is submitted in this case, Your Honours, that

there has been a gross violation of sentencing
principles and a failure to adhere to the
sentencing principles and guidelines contained in
the Sentencing Act 1991 of Victoria.
The principle of parity between sentences

imposed on different offenders for similar crimes
is just as important as the principle of parity
between sentences imposed on co-offenders for the

same crime. The fundamental aspect - - -

.MASON .CJ:

Does .that mean that a rcourt of criminal appeal

cannot decide at a particular stage that it is
going to increase the level of sentencing for a
particular offence or a particular range of
offences?

MR GRACE:

It is submitted only after due warning has been

given.

MASON CJ: What, in other words, somebody ought to publish a

notice in the Gazette addressed to those
contemplating the crime of rape?

MR GRACE:

No, with respect, Your Honour, the court ought

to, in a published judgment, express the indication

that in perhaps dismissing an appeal by the
Director that courts and the community and
potential accused persons ought to be made aware of
the fact that courts are going to be treating these
types of crimes much more seriously in the future.

DAWSON J:

I think you suggested that the process would be a

gradual one.

MR GRACE:	Or a gradual one.
MASON CJ:	Why does the process being a gradual one overcome

the difficulty?

MR GRACE:

Because in this case you have the opposite

occurring. You have a wholesale fifty per cent, in

Lakeland

24/3/94

effect, increase in sentence without warning to an
applicant based on - - -

MASON CJ: Yes, I can understand the point absence of

warning, but I do not see how consistently with
that you can say that a steady or gradual increase
in the penalty overcomes what you say is the
difficulty.

MR GRACE:

Because consistency in sentencing is a badge of

fairness, and inconsistency in sentencing is a
badge of unfairness. That is the primary
submission. Uniformity in sentencing has been held
in this Court in Bugmy as being an appropriate

model to strive for. What has occurred in this

case has been…

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.

Continue reading Lakeland v The Queen

Details

AGLC: Lakeland v The Queen [1994] HCATrans 259
Case: [1994] HCATrans 259
Decision Date

CaseChat Overview and Summary

The applicant, Lakeland, sought special leave to appeal to the High Court of Australia against a sentencing decision. The Crown was the respondent. The dispute concerned whether the sentencing principles and guidelines, particularly those relating to parity and consistency, as established by the *Sentencing Act 1991* (Vic), had been violated.

The central legal issue before the High Court was whether a court of criminal appeal could significantly increase the level of sentencing for a particular offence or range of offences without prior warning or a clear indication to the public and potential offenders. The applicant argued that a substantial, unexplained increase in sentence, particularly when compared to sentences imposed in comparable cases, constituted a gross violation of sentencing principles and demonstrated unfairness.

The applicant's primary submission was that consistency in sentencing is a fundamental aspect of fairness, and that the sentencing court had acted unfairly by increasing the applicant's sentence by approximately 50% without adequate warning. This increase was allegedly driven by perceived public clamour and emotive responses rather than a reasoned approach. The applicant contended that while gradual increases in sentencing for certain offences might be permissible after due warning, the sudden and significant increase in this case, especially when compared to sentences for more egregious or numerous offences, was unjustifiable and contrary to the principle of uniformity in sentencing, which the High Court had previously endorsed as an appropriate model to strive for.

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