R v J
[2024] NZHC 2257
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
…(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
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
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…