Legal Research
Cases
R v Ralston

R v Ralston

Case [2020] ACTCA 47 29 September 2020

Statutory Interpretation

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	R v Ralston
Citation:	[2020] ACTCA 47
Hearing Date:	7 May 2020
DecisionDate:	29 September 2020
Before:	Murrell CJ, Mossop and Loukas-Karlsson JJ
Decision:	Appeal dismissed
Catchwords:	APPEAL – CRIMINAL LAW – Prosecution appeal against sentence – using a carriage service to groom a person under 16 years of age – whether the primary judge erred assessing the relevant facts of the offence – whether the sentence was manifestly inadequate – whether the Court should exercise its residual discretion to decline to intervene APPEAL – CRIMINAL LAW – Prosecution appeal against sentence – residual discretion to dismiss appeal even if specific error established – whether manifest inadequacy must be demonstrated – how purpose of prosecution sentence appeal is to be taken into account in exercise of the residual discretion
Legislation Cited:	Australian Capital Territory Supreme Court Act 1933 (Cth) s 52 Australian Capital Territory Supreme Court Act 1964 (Cth) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Crimes Act 1900 (ACT) ss 491, 429A Crimes Act 1914 (Cth) s 16A Criminal Appeal Act 1912 (NSW) s 6(3) Criminal Code 1899 (Qld) s 218A(1)(b) Criminal Code 1995 (Cth) ss 474.26, 474.27, 474.27A(1) Federal Court of Australia Act 1976 (Cth) ss 24(1)(b), 28(5) Judiciary Act 1903 (Cth) s 68 Supreme Court Act 1933 (ACT) ss 37E, 37O
Cases Cited:	AB v R [2014] NSWCCA 339 AB v The Queen [1999] HCA 46; 198 CLR 111 Asplund v R [2010] NSWCCA 316 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Bui v Director of Public Prosecutions [2012] HCA 1; 244 CLR 638 Carroll v The Queen [2009] HCA 13; 254 CLR 259 CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 Dalton v The Queen [2015] ACTCA 48 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 256 A Crim R 469 Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 Everett v The Queen (1994) 181 CLR 295 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen (1977) 137 CLR 293 Henry v The Queen [2019] ACTCA 5 Hordern v R [2019] NSWCCA 138 House v The King (1936) 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Kovac v R (1977) 15 ALR 637 Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Malvaso v The Queen (1989) 168 CLR 227 Meadows v The Queen [2017] VSCA 290 Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 Munda v Western Australia [2013] HCA 38; 247 CLR 600 Parkinson v Alexander [2017] ACTSC 201 Peel v The Queen (1971) 125 CLR 447 R…

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 R v Ralston

Details

AGLC: R v Ralston [2020] ACTCA 47
Case: [2020] ACTCA 47
Decision Date: 29 September 2020

CaseChat Overview and Summary

The appeal concerned a prosecution appeal against a sentence imposed by a primary judge in the District Court of New South Wales. The respondent, Ralston, had been convicted of using a carriage service to groom a person under 16 years of age. The prosecution contended that the primary judge erred in assessing the relevant facts of the offence and that the sentence imposed was manifestly inadequate.

The Court of Appeal was required to determine whether the primary judge had made an error in their factual assessment of the offence and, consequently, whether the sentence was so inadequate as to be manifestly so. Furthermore, the Court had to consider whether it should exercise its residual discretion to dismiss the appeal, even if a specific error was established, and how the purpose of a prosecution sentence appeal should inform the exercise of that discretion, particularly in relation to the requirement for manifest inadequacy.

The Court of Appeal found that while there may have been some aspects of the primary judge's assessment that could be debated, these did not rise to the level of an error that would justify intervention. The Court emphasised that the threshold for a prosecution appeal against sentence is high, requiring a demonstration of manifest inadequacy. In exercising its residual discretion, the Court considered the overall justice of the case and concluded that it should not intervene to increase the sentence.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Ralston [2020] ACTCA 47

Most Recent Citation

CDirector of Public Prosecutions v Darryl Burgess (sentence) [2023] VCC 633

Cases Citing This Decision

Chapman v Cottle (No 2) [2025] ACTSC 126
Citation 1 (Para 72)

…See Green at [43]-[44]; Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [72]; R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 at [80].…
R v Noy [2025] ACTSC 93
Citation 2

…2008] NSWCCA 181 R v Bredal [2024] NSWCCA 75 R v Collins [2018] ACTSC 127 R v Lidden [2024] ACTSC 297 R v Pham [2015] HCA 39; 256 CLR 550 R v Ralston [2020] ACTCA 47…
TS v DT [2025] ACTCA 6
Citation 3 (Para 8)

…sion in their grounds of appeal: Alexander v Bakes at [22], citing Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [127]. (iii) The appellate court must observe the ‘natural limitations’ of proceeding on the record, noting the disadvantages of an appellate co…
Director of Public Prosecutions v Cook [2024] ACTSC 379
Citation 4

…say [2020] ACTCA 25 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Miller [2019] ACTCA 25; 279 A Crim R R v QI [2016] ACTSC 188 R v Ralston [2020] ACTCA 47 R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 26…
R v Tbe [2024] QCA 204
Citation 5 (Para 9)

…ar case, the applicant did not demonstrate any real steps towards rehabilitation in respect of the offending behaviours. [39] R v Ralston [2020] ACTCA 47, [14].…
R v Lidden [2024] ACTSC 297
Citation 6

…jar [2008] VSCA 268; 192 A Crim R 76 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Mertell [2022] ACTSC 37 R v Ralston [2019] ACTSC 236 R v Ralston [2020] ACTCA 47 R v Sinclair [2012] ACTSC 151 R v Tootell ex parte AG [2012] QCA 273 R v Verdins [2007] VSCA 102; 16 VR 269 Tector v R [2008] NSWCCA 151; 186 A Crim…
Devenport v Garnon [2024] ACTSC 198
Citation 7 (Para 5)

…trate’s decision in their grounds of appeal: Alexander v Bakes at [22], citing Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [127]. (iii)The appellate court must observe the ‘natural limitations’ of proceeding on the record, noting the disadvantages of an a…
Harlovich v Sebbens [2024] ACTSC 153
Citation 8 (Para 72)

…See Green at [43]-[44]; Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [72]; R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 at [80].…
Hua v Qiao [2024] ACTSC 121
Citation 9

…R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Lewis (1988) 165 CLR 12 R v Omari [2022] ACTCA 4 R v Pham [2015] HCA 39; 256 CLR 550 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 R v UG [2020] ACTCA 8 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Vuolo v…
Brown v Fulham [2024] ACTSC 90
Citation 10

…Liberato v The Queen (1985) 159 CLR 507; 59 ALJR 792 McFarlane v Van Eyle [2022] ACTCA 68 R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 Robinson Helicopter Co I…
Alvarez v Girvan [2024] ACTSC 53
Citation 11 (Para 8)

…dentify the alleged error in the magistrate’s decision in their grounds of appeal: Carroll v R [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 at [127]. If an appellant identifies the ground of appeal from the Magistrates Court as being that the verdict is unreasonable, the…
Calatzis v Jones [2024] ACTSC 42
Citation 12 (Para 2)

…ere specific error has been established, to also establish that the sentence imposed as a result of that error was manifestly inadequate: R v Ralston [2020] ACTCA 47 at [84]-[88].…
Alfred (a pseudonym) v Eiffert [2023] ACTSC 403
Citation 13

…63; 181 CLR 487 McFarlane v Van Eyle [2022] ACTCA 68 Muench v McCue [2020] ACTCA 17 R v Dawson [2022] NSWSC 1131 R v DM [2010] ACTSC 137 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 Roberts v Rhodes [2014] ACTCA 20 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 Smith v The Queen [2001] HC…
Alexander v Bakes [2023] ACTCA 49
Citation 14

…9] ACTSC 145; (2009) 234 FLR 339 R v Liddy [2002] SASC 19; (2002) 81 SASR 22 R v Peters (1886) 16 QBD 636 R v Pfitzner (1976) 15 SASR 171 R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 Roberts v Rhodes [2014] ACTCA 20 The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 The Queen v Hillier [2007] HCA 13;…
Director of Public Prosecutions v Padreny [2024] ACTCA 4
Citation 15

…R v Ralston [2020] ACTCA 47; 285 A Crim R 159…
Harlovich v Sebbens [2023] ACTSCFC 3
Citation 16

…v Flowers [2014] ACTCA 13 R v Holder [1983] 3 NSWLR 245; 13 A Crim R 375 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Nicholas [2019] ACTCA 36 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 R v Tait [1979] FCA 32; 24 ALR 473 Rigby v Kotis [2018] NTSC 48; 273 A Crim R 485 The State of Western Australia v THN [2023] WASCA…
CDirector of Public Prosecutions v Darryl Burgess (sentence) [2023] VCC 633
Citation 17 (Para 14)

…ecent – the grooming process is just as likely to involve platonic, “innocent” exchanges. [4] R v Poynder [2007] NSWCCA 157 [95]. [5] [2020] ACTCA 47 at [14].…
M C-N (a pseudonym) v The Queen [2023] ACTCA 21
Citation 18

…3] HCA 37; 249 CLR 571 House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 47; 252 CLR 601 R v MC [2020] ACTSC 128 R v Ralston [2020] ACTCA 47; 285 A Crim R 159…
R v Taylor [2022] NSWCCA 256
Citation 19 (Para 91)

…identified. A similar view was taken (by majority), in the Supreme Court of the Australian Capital Territory in R v Ralston (2020) 285 A Crim R 159; [2020] ACTCA 47 (“ Ralston ”). A contrary view was taken by N Adams J (with the concurrence of Hoeben CJ at CL and Button J) in Manojlovic v R; R v Manojlovic [2020]…
R v Page [2022] ACTCA 65
Citation 20 (Para 1)

…ehabilitation, and fault on the part of the Crown”: Director of Public Prosecutions v Karazisis [2010] VSCA 350; 31 VR 634; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [80]. The limiting purpose of a prosecution appeal against sentence may itself be a reason for declining to grant relief: Ralston at [96], [99…
NH v Dixon [2022] ACTSC 218
Citation 21 (Para 1)

…The distinction between appeals by an offender and appeals by the Crown was made in R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [176]:…
R v Ralston (No 2) [2022] ACTSC 184
Citation 22 (Para 1)

…be of good behaviour for those three years ( R v Ralston [2019] ACTSC 236). An appeal suggesting manifest inadequacy was not successful ( R v Ralston [2020] ACTCA 47).…
R v Newby [2022] ACTCA 20
Citation 23

…The King [1936] HCA 40; 55 CLR 499 R v Irwin [2019] NSWCCA 113 R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248 R v Lee [2017] ACTCA 30 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 R v Toumo’ua [2017] ACTCA 9 R v UG [2018] ACTCA 64; 14 ACTLR 70 Taylor v R [2020] NSWCCA 46 Taylor v The Queen [2014] ACTCA 9 Will…
R v Omari [2022] ACTCA 4
Citation 24 (Para 1)

…at [34], citing Heydon JA in R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at [12]. The principles were also discussed in detail in R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [90]-[100].…
Bethke v Phelan [2016] ACTSC 328
Citation 25

…Bethke v Phelan [2016] ACTSC 328 CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 R v UG [2020] ACTCA 8; 281 A Crim 291…
Kirby v Ali [2021] ACTSC 95
Citation 26 (Para 1)

…encing jurisprudence became part of the current Supreme Court Act . A large part of this history is detailed in the majority judgement in R v Ralston [2020] ACTCA 47. The Crown sentencing appeal jurisprudence was grafted onto the statute by judicial activity, but it needs to be remembered that this statute did not…
Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
Citation 27 (Para 244)

…ompleteness, I note that since the Court reserved its decision in this matter the ACT Court of Appeal has considered the same question in R v Ralston [2020] ACTCA 47 in the context of s 24(1)(b) and s 28(5) of the Federal Court of Australia Act 1976 (Cth) (which is in different terms than s 5D of the Criminal Appe…

See all citing cases →

Cases Cited

R v J [2024] NZHC 2257
Citation 1 (Para 1)

…So far as the ACT was concerned, the approach in the Crown sentence appeals in Tait was adopted and applied in R v J (1982) 45 ALR 331 at 337, 340. Thereafter, reference to double jeopardy was made in a number of Territory Crown sentence appeals: R v Boudelah (1991) 28 FCR 176 at 186; R v P (1992) 39 FCR 276 at 283;…
R v Kovac [2021] NSWDC 85
Citation 2 (Para 1)

…In Kovac v R (1977) 15 ALR 637 ( Kovac ) at 643 a Full Court of the Federal Court determined that such appeals from the Supreme Court of a territory were to be dealt with consistently with House v The King (1936) 55 CLR 499 ( House v The King ). The Court rejected the approach identified in R v Gosper (1928) 28 SR (…
R v Stacker [2020] ACTCA 34
Citation 3 (Para 1)

…any purpose that the Court considers to be appropriate: Nicholas at [119]. The applicable principles were recently summarised in The Queen v Stacker [2020] ACTCA 34 at [210].…
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Citation 4 (Para 1)

…On the other hand, in Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [6] and [33] Basten JA (with whom Rothman and Cavanagh JJ agreed) held that it was not necessary to consider the ground of manifest inadequacy in circumstances where “a specific material error has been identified”: at [33]. His…
R v UG [2020] ACTCA 8
Citation 5 (Para 1)

…ly inadequate or manifestly excessive are well known. They were recently restated in R v Nicholas; R v Palmer [2019] ACTCA 36 ( Nicholas ) and R v UG [2020] ACTCA 8 at [41]-[42].…
R v Nicholas; R v Palmer [2019] ACTCA 36
Citation 6 (Para 1)

…urpose of Crown sentence appeals. The discretion has continued to be exercised in Crown sentence appeals since Flowers : see R v Nicholas; R v Palmer [2019] ACTCA 36 at [115]-[122].…
R v Miller [2019] ACTCA 25
Citation 7 (Para 1)

…idual discretion is applicable to both ACT and Commonwealth offences: See R v Duffy [2014] ACTCA 53; 297 FLR 359 at [103]-[106] ( Duffy ), R v Miller [2019] ACTCA 25 at [5] ( R v Miller ), and R v Harrington [2016] ACTCA 10 at [160] ( Harrington ). In Duffy the Court noted that the survival of the residual discret…
Yin v R [2019] NSWCCA 217
Citation 8 (Para 1)

…appeal on factual matters. However that view has failed to receive support in subsequent judgments of the NSW Court of Criminal Appeal: see Yin v R [2019] NSWCCA 217 at [27].…
R v Ralston [2019] ACTSC 236
Citation 9 (Para 1)

…ntion of making it easier to procure the child to engage in sexual activity with him, contrary to s 474.27(1) of the Criminal Code (Cth): R v Ralston [2019] ACTSC 236. The offence of grooming carries a maximum penalty of 12 years’ imprisonment.…
Hordern v R [2019] NSWCCA 138
Citation 10 (Para 1)

…In Hordern v R [2019] NSWCCA 138 at [6]-[20], Basten JA (Hamill J agreeing) disapproved of O’Donoghue and expressed the view that a court of appeal was not so constrained in an appeal on factual matters. However that view has failed to receive support in subsequent judgments of the NSW Court of Criminal Appeal: see…
R v Rappel [2019] ACTCA 11
Citation 11 (Para 1)

…In a similar vein, the correct approach was summarised in The Queen v Rappel [2019] ACTCA 11 ( Rappel ) at [10], where the Court stated:…
Henry v The Queen [2019] ACTCA 5
Citation 12 (Para 1)

…tion a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665, and in this Court see, for example, Henry v The Queen [2019] ACTCA 5. An appellate court must respect the wide discretion of the sentencing judge concerning an appropriate sentence: Nicholas at [66].…
R v Avery [2018] ACTCA 57
Citation 13 (Para 1)

…The position in relation to 1, 2 and 5 is consistent with the summary relating to Crown sentence appeals given in R v Avery [2018] ACTCA 57 at [6].…
R v Biber [2018] NSWCCA 271
Citation 14 (Para 1)

…have been some misapplication of principle”: R v Pham [2015] HCA 39; 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ). See also R v Biber [2018] NSWCCA 271 at [35].…
R v Summerfield [2018] ACTCA 20
Citation 15 (Para 1)

…An approach consistent with that articulated in O’Neill has been adopted by this court in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at [118], [151] and in Toumo’ua at [83].…
R v JW [2017] NSWSC 1843
Citation 16 (Para 1)

…nduct of the Crown case at sentence, it developed into a principle of broader application. As pointed out by Spigelman CJ in R v JW [2010] NSWCCA 49; 77 NSWLR 7 ( JW ), the double jeopardy principle operated in at least two aspects of a Crown appeal. First, it was a significant factor in the exercise of discr…
R v James [2017] NSWCCA 287
Citation 17 (Para 1)

…The decision in Janceski has been treated as providing an additional hurdle for a Crown appeal against sentence. In R v James [2017] NSWCCA 287 Hoeben CJ at CL (with whom Bathurst CJ and Button J agreed) at [42] identified that on a sentence appeal pursuant to s 5D the Crown needed to first establish a House v The K…
Meadows v The Queen [2017] VSCA 290
Citation 18 (Para 1)

…[2010] NSWCCA 316 ( Asplund ), R v Costello [2011] QCA 39 ( Costello ), R v Nahlous [2013] NSWCCA 90; 273 FLR 232 ( Nahlous ) and Meadows v The Queen [2017] VSCA 290 ( Meadows ).…
Parkinson v Alexander [2017] ACTSC 201
Citation 19 (Para 1)

…e ) at 401; Kentwell v The Queen [2014] HCA 37; 252 CLR 601 ( Kentwell ) at [35]; Tate v The Queen [2012] ACTCA 50 at [50]; Parkinson v Alexander [2017] ACTSC 201 at [176]. It is necessary to identify specific error within the terms of House v The King (1936) 55 CLR 499 ( House v The King ) as a ground of appeal: C…
R v Lee [2017] ACTCA 30
Citation 20 (Para 53)

…As this Court said in R v Lee [2017] ACTCA 30 at [53], a Crown appeal against sentence is a “unique species of appeal” … Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for t…
R v XX [2017] NSWCCA 90
Citation 21 (Para 1)

…equirement for manifest inadequacy, even where it is not the House v The King error relied upon in the appeal, was adopted by Beech-Jones J in R v XX [2017] NSWCCA 90 at [8] (Bathurst CJ and R A Hulme J agreeing) and in R v AA [2017] NSWCCA 84 at [11] (Leeming JA and R A Hulme J agreeing).…
R v AA [2017] NSWCCA 84
Citation 22 (Para 1)

…error relied upon in the appeal, was adopted by Beech-Jones J in R v XX [2017] NSWCCA 90 at [8] (Bathurst CJ and R A Hulme J agreeing) and in R v AA [2017] NSWCCA 84 at [11] (Leeming JA and R A Hulme J agreeing).…
R v Toumo'ua [2017] ACTCA 9
Citation 23 (Para 1)

…ellant. It was submitted that there are conflicting intermediate appellate authorities as to the correct analysis. The appellant cited R v Toumo’ua [2017] ACTCA 9 ( Toumo’ua ) at [83] and [89] in which the Court stated:…
R v Harrington [2016] ACTCA 10
Citation 24 (Para 1)

…h offences: See R v Duffy [2014] ACTCA 53; 297 FLR 359 at [103]-[106] ( Duffy ), R v Miller [2019] ACTCA 25 at [5] ( R v Miller ), and R v Harrington [2016] ACTCA 10 at [160] ( Harrington ). In Duffy the Court noted that the survival of the residual discretion has been assumed following the abolition of the “doubl…
DPP v O'Neill [2015] VSCA 325
Citation 25 (Para 1)

…In Victoria a different approach to that identified in Reynolds and Janceski has been adopted. In Director of Public Prosecutions v O’Neill [2015] VSCA 325; 47 VR 395 ( O’Neill ) the Court of Appeal rejected the proposition that had been advanced by the Director that, in a case where specific errors were made out,…
R v Pham [2015] HCA 39
Citation 26 (Para 1)

…imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle”: R v Pham [2015] HCA 39; 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ). See also R v Biber [2018] NSWCCA 271 at [35].…
Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278
Citation 27 (Para 1)

…levant offending to the two messages on 13 April 2018. This was a factual error: Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 ( Turnbull ) at [26], [32].…
Dalton v The Queen [2015] ACTCA 48
Citation 28 (Para 1)

…The principles applicable to any appeal alleging that a sentence is manifestly wrong were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:…
CMB v Attorney-General (NSW) [2015] HCA 9
Citation 29 (Para 1)

…nt to the exercise of the residual discretion (as opposed to an aid to interpretation) is demonstrated by the reasons in CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 ( CMB ). This was a case which post-dated the amendments abolishing double jeopardy as a sentencing consideration which were considered…
AB v R [2014] NSWCCA 339
Citation 30 (Para 1)

…Factual findings are binding on an appellate court unless they come within the established principles of intervention: AB v R [2014] NSWCCA 339 ( AB v R ) at [44]. These principles require that error be shown before a Court of Appeal will interfere with a sentence: R v O’Donoghue (1988) 34 A Crim R 397 ( O’Donoghue…
R v Duffy [2014] ACTCA 53
Citation 31 (Para 1)

…The residual discretion is applicable to both ACT and Commonwealth offences: See R v Duffy [2014] ACTCA 53; 297 FLR 359 at [103]-[106] ( Duffy ), R v Miller [2019] ACTCA 25 at [5] ( R v Miller ), and R v Harrington [2016] ACTCA 10 at [160] ( Harrington ). In Duffy the Court noted that the survival of the residual…
Kentwell v The Queen [2014] HCA 37
Citation 32 (Para 1)

…shown before a Court of Appeal will interfere with a sentence: R v O’Donoghue (1988) 34 A Crim R 397 ( O’Donoghue ) at 401; Kentwell v The Queen [2014] HCA 37; 252 CLR 601 ( Kentwell ) at [35]; Tate v The Queen [2012] ACTCA 50 at [50]; Parkinson v Alexander [2017] ACTSC 201 at [176]. It is necessary to identify…
R v Reeves [2014] NSWCCA 154
Citation 33 (Para 1)

…at [146]. The Court has a discretion to refuse or decline to intervene even if error is established: R v JW at [146]; Green at [1], [26]; R v Reeves [2014] NSWCCA 154; 243 A Crim R 559 ( R v Reeves ) at [12]. It is an error for the Court to fail to consider the exercise of its residual discretion to dismiss a prose…
R v Flowers [2014] ACTCA 13
Citation 34 (Para 1)

…h a sentence even though error has been established, has survived the denial of double jeopardy as being a relevant sentencing principle: R v Flowers [2014] ACTCA 13 ( Flowers ). This conclusion was reached notwithstanding that the authorities referred to related to jurisdictions in which the principle of double j…
Reeves v The Queen [2013] HCA 57
Citation 35 (Para 1)

…discretion to dismiss a prosecution appeal despite finding error: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 ( Bugmy ) at [24]; Reeves v The Queen [2013] HCA 57; 88 ALJR 215 ( Reeves v The Queen ) at [60]-[61]. The Court retains a residual discretion: Harrington .…
Munda v Western Australia [2013] HCA 38
Citation 36 (Para 1)

…ble jeopardy” consideration in sentencing following Bui v Director of Public Prosecutions [2012] HCA 1; 244 CLR 638 and Munda v Western Australia [2013] HCA 38; 247 CLR 600 ( Munda ).…
Bugmy v The Queen [2013] HCA 37
Citation 37 (Para 1)

…or for the Court to fail to consider the exercise of its residual discretion to dismiss a prosecution appeal despite finding error: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 ( Bugmy ) at [24]; Reeves v The Queen [2013] HCA 57; 88 ALJR 215 ( Reeves v The Queen ) at [60]-[61]. The Court retains a residual discr…
R v CV [2013] ACTCA 22
Citation 38 (Para 1)

…viously taken, the principles in Tait continued to be applied in the ACT: R v Relph [2002] ACTCA 6 at [22]; R v Cooper [2012] ACTCA 9 at [57]; R v CV [2013] ACTCA 22 at [56].…
R v Nahlous [2013] NSWCCA 90
Citation 39 (Para 1)

…s referred to four comparable cases by the appellant: Asplund v R [2010] NSWCCA 316 ( Asplund ), R v Costello [2011] QCA 39 ( Costello ), R v Nahlous [2013] NSWCCA 90; 273 FLR 232 ( Nahlous ) and Meadows v The Queen [2017] VSCA 290 ( Meadows ).…
R v Cooper [2012] ACTCA 9
Citation 40 (Para 1)

…sistently with the approach previously taken, the principles in Tait continued to be applied in the ACT: R v Relph [2002] ACTCA 6 at [22]; R v Cooper [2012] ACTCA 9 at [57]; R v CV [2013] ACTCA 22 at [56].…
Tate v The Queen [2012] ACTCA 50
Citation 41 (Para 1)

…v O’Donoghue (1988) 34 A Crim R 397 ( O’Donoghue ) at 401; Kentwell v The Queen [2014] HCA 37; 252 CLR 601 ( Kentwell ) at [35]; Tate v The Queen [2012] ACTCA 50 at [50]; Parkinson v Alexander [2017] ACTSC 201 at [176]. It is necessary to identify specific error within the terms of House v The King (1936) 55 CLR 4…
The State of Western Australia v Munda [2012] WASCA 164
Citation 42 (Para 1)

…utlined appears to be generally consistent with the broad scope given to the residual discretion by Buss JA in The State of Western Australia v Munda [2012] WASCA 164; 43 WAR 137 at [242](c).…
R v Chatfield [2012] ACTCA 32
Citation 43 (Para 1)

…ses of sentencing is “to ensure that the offender is adequately punished for the offence in a way that is just and appropriate”. In R v Chatfield [2012] ACTCA 32 ( Chatfield ) the Court of Appeal held that the purpose of s 16A of the Crimes Act 1914 (Cth) and s 7(1)(a) of the Crimes (Sentencing) Act were the same:…
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1
Citation 44 (Para 1)

…The decision of the High Court in Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638 ( Bui ) led to the demise of the principle of double jeopardy derived from Tait in relation to a sentence for a federal offence governed by s 16A of the Crimes Act 1914 (Cth). Section 16A provided that in det…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 45 (Para 1)

…The statements of the High Court in Green v The Queen [2011] HCA 49; 244 CLR 462 ( Green ) are more consistent with O’Neill than with Reynolds/Janceski . Green related to the exercise of the residual discretion in circumstances where the imposition of a sentence by the Court of Appeal would create a disparity be…
R v TW [2011] ACTCA 25
Citation 46 (Para 3)

…ique species of appeal” … Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke (1996) 2 VR 520 at 522: (a) to…
Momcilovic v The Queen [2011] HCA 34
Citation 47 (Para 1)

…. As pointed out in Lacey , this is an example of the principle of legality, the content of which is described by French CJ in Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [43].…
Lacey v Attorney-General (Qld) [2011] HCA 10
Citation 48

…(1977) 137 CLR 293 at 310 per Barwick CJ; Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ, discussed in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[20] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.…
R v Costello [2011] QCA 39
Citation 49 (Para 1)

…The sentencing judge was referred to four comparable cases by the appellant: Asplund v R [2010] NSWCCA 316 ( Asplund ), R v Costello [2011] QCA 39 ( Costello ), R v Nahlous [2013] NSWCCA 90; 273 FLR 232 ( Nahlous ) and Meadows v The Queen [2017] VSCA 290 ( Meadows ).…
DPP v Karazisis [2010] VSCA 350
Citation 50 (Para 1)

…ss a Crown appeal even where error was established: at [95]. The same conclusion was reached in relation to the Victorian provisions in R v Karazisis [2010] VSCA 350; 31 VR 634 ( Karazisis ), namely, that the removal of double jeopardy did not diminish the courts residual discretion to decline to intervene in a Cr…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 33, 7
3 mentions (from Para 1)
Crimes Act 1900 (ACT) 429A, 491
3 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth) 24(1)(b), 28(5)
3 mentions (from Para 1)
Supreme Court Act 1933 (ACT) 37E, 37O
3 mentions (from Para 1)
Australian Capital Territory Supreme Court Act 1933 (Cth) 52
2 mentions (from Para 1)
Crimes Act 1914 (Cth) 16A
2 mentions (from Para 1)
Criminal Appeal Act 1912 (NSW) 6(3)
2 mentions (from Para 1)
Judiciary Act 1903 (Cth) 68
2 mentions (from Para 1)
Australian Capital Territory Supreme Court Act 1964 (Cth)
1 mention (from Para 1)