R v Ralston
[2020] ACTCA 47
•29 September 2020
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) 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 Yin v R [2019] NSWCCA 217 |
Texts Cited: | Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 |
Parties: | The Queen (Appellant) Andrew Ralston (Respondent) |
Representation: | Counsel M England (Appellant) S McLaughlin (Respondent) |
| Solicitors Commonwealth Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 42 of 2019 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 27 August 2019 Case Title: R v Ralston Citation: [2019] ACTSC 236 |
MURRELL CJ and MOSSOP J:
A jury found the respondent guilty of the offence that, between 25 March and 13 April 2018, he used a carriage service to transmit a communication to a recipient under 16 years of age with the intention 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.
Elkaim J (the sentencing judge) sentenced the respondent to two years’ imprisonment, wholly suspended on the respondent entering a recognizance release order.
The Crown appealed against a sentence on the grounds that:
(a)The sentencing judge erred in finding that the offending was constituted only by communications sent on 13 April 2018 (rather than over the period 25 March to 13 April 2018); and
(b)The sentence was manifestly inadequate.
The trial
In November 2017, the respondent met the child. She was the daughter of a woman whom he was dating. The 48-year-old respondent communicated via Instagram message with the child, who was then 11 years old.
Some months before March 2018, the child’s mother asked the child to send a text message to the respondent using her telephone. Thereafter, the child continued to exchange messages with the respondent on her mother’s telephone until he asked her to communicate via Instagram and to delete the messages from her mother’s telephone.
Instagram messages sent on unknown dates prior to 25 March 2018 included “I really liked your short skirt the other day” and “I really enjoyed holding your hand the other day”.
During the period of the offence, 25 March to 13 April 2018, the respondent sent messages to the child, which were later photographed and in relation to which dates and times were known (Exhibit B, AB tab 12). The following messages are notable.
(a)On 25 March 2018, “do you like being with me”.
(b)On 31 March 2018, “I miss you. Can we chat without you telling your mum. I know you feel for me what I feel for you”.
(c)2 April 2018, “if you don’t hug me when I next walk in I delete you and leave you in peace”. Later on the same day, “I may come over. Do you want me to”. Still later on the same day, “do you like me the same way as I like you”.
(d)On 13 April 2018, “I want to see your nude body”, followed by “yes or no”. The messaging occurred either while the respondent was at the child’s home (having been invited there for dinner) or very soon after he left the home.
After the last message was sent, the child reported it to her mother, who immediately confronted the respondent.
At the trial, the respondent denied sending the messages, but did not challenge the dates upon which the messages were allegedly sent.
In opening and closing submissions to the jury, the Crown submitted that the offence comprised all messages sent between 25 March and 13 April, which, taken together, evidenced an attempt to gradually build trust. By consent, the jury was provided with an aide memoir that included the dates and messages that had been sent over the period the subject of the charge (AB tab 15).
Ground 1: Error concerning the subject matter of the offence
At the sentencing hearing, the following exchange occurred between the sentencing judge and Mr Sim who appeared for the Crown:
His Honour: … Doesn’t it follow from the verdict that what he’s been convicted of was really just two messages, namely …
…
Mr Sim: With respect, your Honour the indictment’s framed, obviously, in that between dates period from 25 March to whatever it was, 13 April … Certainly they were the key messages, but it’s the build-up of the messages as came out in the evidence … the messages that predate the period of the offending that weren’t photographed, that your Honour will recall the other witnesses said they recalled … Now, they clearly do not fall within the period of the charge period, but they are, in the Crown case, relevant for context … but it’s the messages that come before [the messages of 13 April]. “Do you like being with me?” which was sent on 25 March. “Can we chat without you telling your mum? I know you feel for me what I feel for you”, on 31 March. On 2 April “I get the hint … Do you like me the same way as I like you?” Now, its that build-up, your Honour. All those messages of course fall within the period of the charge on the indictment.
His Honour: Just for the moment, if you assume I’m against you on that and that in my view the jury’s verdict is confined to those last two messages [of 13 April], does that affect your statement about the objective seriousness? …
Mr Sim: Yes, I think it must, your Honour, because I mean, the Crown position is in effect it’s a slow build-up and it’s, as the authorities make plain, this is not uncommonly how these matters tend to unfold …
After hearing further submissions, primarily in relation to the respondent’s subjective circumstances, the sentencing judge delivered his reasons ex tempore.
At [5]-[8], the sentencing judge said:
5. At first sight, a number of the messages might be seen as having constituted the offence. However the indictment was specific as to the time. (25 March 2018 to 13 April 2018) during which the incriminating messages were alleged to have been sent. The evidence in the case did not allowing any conclusion to be reached about the date of sending of any of the messages, other than the last two, sent on 13 April 2018. While the other possibly incriminating messages might be regarded as of contextual relevance they cannot be seen as forming the basis upon which the offender was convicted. (Emphasis added)
6. The messages that I am satisfied the jury found, beyond reasonable doubt, as constituting the offence, had been sent by the accused to the complainant on 13 April 2018. They were: “I want to see your nude body”, followed immediately by “Yes or no”.
7. I am satisfied that the jury found, again beyond reasonable doubt, that these messages had been sent by the offender with the intention of making it easier to procure the complainant to engage in sexual activity with him. The offender did not take issue with this conclusion. His defence was run entirely on the assertion that he had not sent the messages to the complainant.
8. … Because of the limitation I have found on the offending I think it must follow that the objective seriousness of the offence must be regarded as below medium.
Unlike the offence under s 474.26 of the Criminal Code, which involves an intention “to procure” a child to engage in sexual activity and carries a maximum penalty of 15 years’ imprisonment, an offence of grooming is established by showing an intent to “make it easier to procure”. Section 474.27 was amended in 2010 to remove a requirement that the grooming communications be indecent. The associated Explanatory Memorandum stated (at 92):
The practice of grooming encompasses a wide range of activity designed to build a relationship of trust with the child for the purposes of later sexually exploiting the child. The content of communications between the offender and the child may not always be indecent – the grooming process is just as likely to involve platonic, “innocent” exchanges.
On the appeal, the respondent conceded that the sentencing judge had erred in finding that the offending conduct was confined to the conduct on 13 April 2018. This was because his Honour confused two sets of messages: the dated Instagram messages that had been sent between 25 March 2018 and 13 April 2018 (see [7] above) and a further group of messages in relation to which dates were not known.
This specific error as to the facts meant that his Honour assessed the objective seriousness of the offence only by reference to the messages sent on 13 April 2018.
This specific error about the subject matter of the offence enlivens the Court’s power to resentence.
Ground 2: Manifest inadequacy
For the reasons given by her Honour, we agree with Loukas-Karlsson J that the appellant has not established that the sentence was manifestly inadequate.
Residual discretion – manifest inadequacy not a precondition for relief
The position is, therefore, that a specific error has been established but manifest inadequacy has not.
The issue that arose in this case was whether, once specific error is identified, it is necessary for the Crown to establish that the relevant sentence is also manifestly inadequate before the Court of Appeal will intervene. The Crown initially submitted that it was required to establish manifest inadequacy before the court would intervene and resentence the respondent. In supplementary submissions filed following the conclusion of the hearing, the Crown submitted that the finding of specific error was sufficient to enliven the discretion to resentence on a Crown appeal.
In order to resolve this issue we first examine the history of Crown appeals in the Territory. We then examine the scope and current application in the Territory of the very influential statements of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 (Griffiths) as to the nature and purpose of Crown sentence appeals. Against that background we then examine the issue in this case and conclude that it is not necessary in a Crown sentence appeal where specific error has been established, to also establish that the resulting sentence was manifestly inadequate in order for the appeal court to allow the appeal and resentence the offender.
Crown appeals against sentence in the Territory
A Crown appeal against sentence was first recommended by the Council of Judges of the Supreme Court of England and Wales in 1892: Lacey v Attorney-General (QLD) [2011] HCA 10; 242 CLR 573 (Lacey) at [8]. That recommendation was not taken up. Crown sentence appeals were first introduced in Australia in 1924 when they were provided for in New South Wales (NSW) and Tasmania: Lacey at [10]. They were subsequently introduced in other States.
Up until the establishment of the Federal Court in 1977, there was no capacity for the Crown to appeal against a sentencing decision of the Supreme Court of the Australian Capital Territory (ACT): R v Tait (1979) 46 FLR 386 (Tait) at 387. Appeals were limited to those by the offender. This was the case both before and after the amendments made to the relevant appeal provision, s 52 of the Australian Capital Territory Supreme Court Act 1933 (Cth), in 1964 by the Australian Capital Territory Supreme Court Act 1964 (Cth).
Upon the establishment of the Federal Court, appeals from the Supreme Court to a Full Court of the Federal Court were governed by the generally worded appeal provisions (ss 24(1)(b) and 28(5)) of the Federal Court of Australia Act 1976 (Cth), which permitted an appeal from any judgment or order made by the Supreme Court.
24Appellate jurisdiction
(1)Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:
…
(b) appeals from judgments of the Supreme Court of a Territory;
The orders that could be made were set out in s 28 and included, relevantly:
28Form of judgment on appeal
(1)Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
…
(5)The powers of the Court under subsection (1) in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence.
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 (NSW) 568 (Gosper) which held that under s 6(3) of the Criminal Appeal Act 1912 (NSW) the NSW Court of Criminal Appeal had (as set out in the headnote at 568): “an unfettered judicial discretion to review sentences imposed upon convicted persons without the necessity of considering whether, in imposing any sentence under review, the trial Judge proceeded upon any wrong principle, or upon any misapprehension of the facts.”
The decision in Gosper was based upon the court’s interpretation of the decision in Whittaker v The King (1928) 41 CLR 230 (Whittaker) which had been decided a few days earlier. Subsequently, in Griffiths, Barwick CJ and Jacobs J said that this was not in fact what Whittaker decided or, if it did, the decision was wrong. Because of the decision in Kovac, unlike the position in NSW, there was never a need to extirpate the ghost of Whittaker from Crown sentence appeals in the Territory as Barwick CJ did in Griffiths.
It was these provisions which were considered by the Federal Court in Tait, an appeal from the Northern Territory. This was the first Crown appeal brought under the appeal provisions of the Federal Court of Australia Act. The Court recognised that the provisions of the Federal Court of Australia Act “do not provide any basis for distinguishing between the general principles to be applied by the court on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a defendant.”: at 387. It referred to the principles adopted in Kovac as the correct ones and noted that the appeal court would not interfere merely because the sentence is insufficient or excessive, but instead because the judge acted on a wrong principle or on a misunderstanding or in an incorrect assessment of some salient feature of the evidence. It recognised that manifest excess or inadequacy may indicate such an error.
Notwithstanding the generality of the appeal provisions considered in that case, the court adopted the pronouncements of Barwick CJ in Peel v The Queen (1971) 125 CLR 447 (Peel) at 452 as to the limitations on the purpose of Crown appeals, in that Crown appeals cut across “time-honoured concepts of criminal administration”. The court in Tait said (at 388-389):
A Crown appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal” (per Isaacs J. in Whittaker v The King, [supra at 248]). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.
The judgment then went on to further discuss the principle, putting it in the context of a case in which there was some default on the part of the Crown in presenting the case at first instance. It referred to the injustice of exposing a defendant “to double jeopardy because of an error affecting his sentence, if the Crown’s presentation of the case either contributed to the error or lead the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error.”: at 389.
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; The Queen v Partridge (unreported, Full Federal Court, Gallop, Mathews and Madgwick JJ, 29 May 1998) at 14-15; The Queen v Griggs [1999] FCA 1573; 95 FCR 490 at [15].
Notwithstanding that in Tait the discussion of double jeopardy was placed in the context of there being some inadequacy in the conduct of the Crown case at sentence, it developed into a principle of broader application. As pointed out by Spigelman CJ in R vJW [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 discretion as to whether or not to intervene where an error had been shown. Second, it was significant in affecting the magnitude of a substituted sentence, permitting the appeal court to impose a sentence at the bottom end of the available range.
When, in 2002, the Court of Appeal became the court to which appeals could be brought against sentences imposed by the Supreme Court, the relevant statutory provisions in the Supreme Court Act 1933 (ACT) made no differentiation between Crown appeals and an appeal by an offender. Rather, they were modelled on the generally worded provisions in the Federal Court of Australia Act. Section 37E of the Supreme Court Act permitted an appeal against a “judgment” of the court: s 37E(2)(a)(ii). “Judgment” was defined in the Dictionary to include “any … sentence”. The powers of the court on appeal were similar to those which had existed in the Federal Court, s 37O(1) providing that the court had, among other powers, the power to:
(a)confirm, reverse or vary the judgment; and
(b)give any judgment it considers appropriate, or refuse to give an order applied for.
The Supreme Court Act also included s 37O(5) which was in the same terms as that which had existed in s 28(5) the Federal Court of Australia Act:
(5)In a criminal matter, the powers of the Court of Appeal in an appeal against sentence (whether by the prosecution or defendant) include the following powers:
(a)to increase or decrease the sentence;
(b)to substitute a different sentence.
Consistently 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].
From 2006, sentencing for Territory offences was dealt with by the Crimes (Sentencing) Act 2005 (ACT). That Act included in it a detailed statement of the purposes of sentencing: s 7, and matters to be considered when imposing a sentence: s 33.
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 determining the sentence to be passed a court must impose a sentence or make an order “that is of a severity appropriate in all the circumstances of the offence”. The court observed that Tait had been decided in a context of a general appeal provision and in the absence of statutory provisions dealing with sentencing principles: at [17]. The court held that s 16A does not accommodate the principle of double jeopardy which the appellant had sought to introduce. It therefore rejected the proposition that the concept of double jeopardy was one of the matters that was to be taken into account under the section. Therefore, there was not any automatic discount on the sentence that the appeal court might otherwise impose. The court observed that “to read s 16A in the manner submitted by the appellant would be to gloss the text impermissibly by introducing a notion for which there is no textual foundation. It would go well beyond giving relevant content to any of the expressions found in the section”: at [19]. The court found that there was no distinction between the matters which the statute required to be taken into account at first instance or by a court on appeal: at [20].
The decision in Bui was then picked up and applied in the ACT. Under the Crimes (Sentencing) Act s 7(1)(a), one of the purposes 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: at [67]. Similarly, ss 16A(2) and 33(1) served a like function: at [68]. The court held that if it was to resentence the offender, it should not have regard to the principle of double jeopardy because to do so would be inconsistent with the terms of s 7(1)(a) which required it to impose a sentence that ensured that the offender was adequately punished for the offence. It is clear from the terms of the judgment that the specific issue that was being addressed was the possibility that the court would impose a lesser sentence because of the principle of double jeopardy. In the circumstances of that case, no issue about the exercise of residual discretion arose.
Given that the decision in Chatfield was based upon the terms of the statute, the position in the Territory is likely to have been, albeit unrecognised, that statutory provisions excluded the operation of the principal of double jeopardy in relation to Crown sentence appeals since 1993 when ss 429 and 429A (the equivalent of ss 7 and 33 of the Crimes (Sentencing) Act)) were inserted in the Crimes Act 1900 (ACT).
Prior to the decision in Bui, both NSW and Victoria had made amendments to their sentencing legislation so as to expressly remove the effect of double jeopardy in a Crown appeal. The consequences of that removal were therefore derived from the express terms of those legislative changes, rather than from the judicial interpretation of generally worded provisions in relation to sentence appeals. In NSW the amendments removed from consideration the distress and anxiety to which all respondents to a Crown appeal are presumed to be subject when deciding whether or not to intervene or by reducing the sentence that is to be imposed from that which would otherwise be considered to be appropriate: JW at [45]. It also prevented consideration of the frequency of Crown appeals when considering either of those two matters. Notably, in the NSW context, the decision in JW recognised that, notwithstanding the abolition of double jeopardy, there remained a residual discretion to dismiss 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 Crown sentence appeal.
While in Tait the discussion of the effect of double jeopardy overlapped with the consideration of matters of discretion relating, for example, to the conduct of the Crown at sentencing, the Court of Appeal has held, subsequent to Bui and Chatfield, that the residual discretion of the court, upon a Crown appeal, to not interfere with 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 jeopardy had been abolished by statute, whereas in the ACT it occurred less directly as a result of interpreting the general provisions of the sentencing legislation. It is, however, plainly correct having regard to the generally worded statutory provisions which make the granting of relief discretionary and the statements of the High Court in relation to the purpose 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].
In the Territory, the position is that, having recognised that, in relation to both Commonwealth and Territory offences, the issue of double jeopardy is not a matter to be taken into account upon a Crown sentence appeal when determining the appropriate sentence, it would be inconsistent to then introduce the issue of double jeopardy at the point of the exercise of the residual discretion. To do so would be to exercise that discretion in a manner that was inconsistent with the statutory framework for its exercise.
There is one final feature of the approach to the interpretation of the appeal provisions applicable to criminal appeals in the Territory that should be noted. Since 1977 there has been no relevant statutory distinction in the Territory between Crown appeals and offender appeals against sentence. Provisions in general terms have been relied upon. Notwithstanding the generality of the appeal provisions in the Territory, courts over time have been willing to graft onto those provisions principles relevant to the exercise of jurisdiction in particular contexts. Sometimes those principles have been derived in different statutory contexts, where the statutory language provides more guidance than that applicable in the Territory. Three examples illustrate this point:
(a)In Stokes v The Queen (1960) 105 CLR 279 at 285 the High Court was prepared to read into the general provisions for appeal from convictions in the Australian Capital Territory Supreme Court Act 1933 (Cth) a rule equivalent to the proviso found in criminal appeal statutes in other jurisdictions.
(b)R v Hillier [2007] HCA 13; 228 CLR 618 was an appeal from conviction. The High Court described the appeal provisions in the Supreme Court of the ACT as being “spare”: at [25]. The statutory language did not include the common form criminal appeal statute provisions allowing a verdict of a jury to be set aside on the ground “that it is unreasonable or cannot be supported having regard to the evidence”: at [16]. The court read the “spare” provisions as operating in a manner consistent with the common form criminal appeal statute.
(c)The principal in Kentwell v The Queen [2014] HCA 37; 252 CLR 601, a case involving an appeal by a convicted person, which appeared to turn on the specific statutory language in s 6(3) of the Criminal Appeal Act, has been adopted in the Territory requiring that this court “should re-sentence by exercising the sentencing discretion afresh, rather than merely confirming the original sentence on the basis that it fell within the available range”: R v Toumo’ua [2017] ACTCA 9 at [12] (Toumo’ua).
Because of the “spare” nature of the appeal provisions there is more room for judicial determination of the operation of those provisions in specific contexts. However, it must always be borne in mind that what is being applied are statutory provisions which are in general terms and care must be taken to not “gloss the text impermissibly by introducing a notion for which there is no textual foundation”: cf Bui at [19]. Such an error was corrected in Bui and Flowers when the judicially created principle of double jeopardy was abandoned as it was inconsistent with the then existing statutory provisions. Nevertheless, as the history of decisions following Griffiths described in the next part of these reasons demonstrates, the High Court has continued to affirm the legitimacy of judicially created sentencing principles that might be applied to generally worded statutory provisions.
Griffiths and subsequent cases
The origin of the proposition that the purpose of Crown sentence appeals is to establish some matter of principle and lay down principles for the governance and guidance of sentencing courts lies in the statements by Barwick CJ in Peel at 452 and Griffiths at 310. Those statements have been extremely influential and understood to be of general application to Crown appeals, notwithstanding the variety of statutory provisions in different jurisdictions. They were picked up and relied upon in Tait and two other judgments in which Deane J participated, Malvaso v The Queen (1989) 168 CLR 227 (Malvaso) (in which Deane J joined with McHugh J) and Everett v The Queen (1994) 181 CLR 295 (Everett) (in which Deane J participated in the majority judgment). However, when read in their context, the statements by Barwick CJ do not, in our view, provide a solid foundation for the existence of judicially created principles that operate within Crown sentence appeals under generally worded appeal provisions which make no distinction between Crown appeals and appeals by convicted persons.
In Peel the commonly quoted sentence in relation to Crown sentence appeals is “They cut across time-honoured concepts of criminal administration.”: at 452. However, that statement occurs in the context of deciding whether the generally worded provisions of s 68(2) of the Judiciary Act 1903 (Cth) gave to the Attorney-General of the Commonwealth the right to apply to the Court of Criminal Appeal to vary a sentence imposed by a State court for an offence against the law of the Commonwealth. His Honour examined the statutory provisions that existed as at 1932. He said (at 452):
However such rights of appeal are neither traditional nor were they in 1932 exampled in the legislation or practice of the United Kingdom. They cut across time-honoured concepts of criminal administration. But, of course, it is within the province of the Parliament of the Commonwealth to give such rights if it should think fit to do so.
His Honour then recognised that “neither the unusual nature of the rights nor the circumstances that they did not exist in 1932 in all the States of the Commonwealth with respect to State offences will require that effect should not be given to the expressed will of the Parliament”: at 452. His Honour concluded that, as a matter of statutory interpretation, s 68(2) did not give that right of appeal to the Commonwealth Attorney‑General. He was in dissent on that issue. The significant point about his Honour’s reasons is that he was engaged in a statutory interpretation exercise. His Honour was simply using the unusual nature of a Crown sentence appeal as at 1932 as a factor to be taken into account in interpreting a statutory provision said to grant such a right.
In Griffiths the Chief Justice was dealing with “a further matter… raised by the applicant which perhaps need not be disposed of in order to resolve this appeal” (at 308), namely, whether the understanding that Whittaker established that s 5D of the Criminal Appeal Act gave an unfettered discretion to the Court of Criminal Appeal to substitute its own sentence for a sentence appealed from, or whether it only allowed intervention where the inadequacy of sentence demonstrated an error of principle. His Honour was concerned to remedy what he perceived to be the existing unsatisfactory situation in which “the misapprehension as to the effect of this court’s decision in Whittaker v. The King had led to much more frequent appeals by the Attorney-General than might properly have been expected”: at 310. As explained above at [27], the NSW Supreme Court in Gosper had taken Whittaker as deciding that the reference to discretion in s 5D was to give an “unlimited judicial discretion” to intervene whether or not error had been demonstrated: at 570.
In Griffiths, having articulated that s 5D did not provide the unfettered discretion to intervene, His Honour then said (at 310):
On my view of the proper meaning of s. 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The present appeal, though mistaken, is understandable as apparently it was thought that the course taken by the trial judge was erroneous in point of principle or practice.
The statements made by the Chief Justice appear to be addressing the statutory interpretation question as to the scope of the appeal provisions that were applicable to Housev The King-type errors. When read in context the statements do not appear to be targeted at imposing a further qualification upon the statutory provisions which provide for Crown sentence appeals.
The decision of Barwick CJ in Griffiths was referred to in the judgment of Deane and McHugh JJ in Malvaso at 234. In obiter remarks the judgment stated (at 234):
Nonetheless, it should not be forgotten that it represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy…
Deane and McHugh JJ then refer to the judgment of Barwick CJ in Griffiths and say that the judgment “should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country”: at 234. The judgment in Malvaso then indicated that this could occur where a Crown appeal lies against sentence only with the leave of the court, as was the case in that case. It is clear how such guidance might be relevant to the discretion to grant leave to the Crown to appeal. There was no explanation as to how the principle would be applied in cases where there was no requirement for leave in the statute providing for Crown sentence appeals.
The judgment in Griffiths was also referred to in Everett. That was a case in which the Tasmanian Court of Criminal Appeal was required to grant leave for a Crown sentence appeal. A majority of the court said that such leave should be granted “only in the rare and exceptional case”: at 299. The reasons went on to refer to double jeopardy, stating that “An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed”: at 299. The footnote to that sentence referred to the dissenting judgment of Isaacs J in Whittaker and then Tait and subsequent cases.
It may be observed how significantly the statements in the judgment in Everett were affected by the double jeopardy concept. McHugh J, who wrote separately, referred to the discretion to grant leave to appeal and the need to take into account the attitude of the Crown in the sentencing court. His judgment did not include the same language as that of the other judges and referred to Tait in the context of consideration of the approach taken by the Crown in the sentencing court, rather than for some broader principle relating to double jeopardy.
In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62] Kirby J made reference (in somewhat tentative terms) to the position of Crown sentence appeals as being “in a class somewhat different from that of an appeal against sentence by a convicted offender”. This was said to arise “[f]or reasons of legal history and policy”: at [62].
In Lacey the court surveyed the development of Crown sentence appeals in Australia and the decisions of the High Court which have been referred to above, in which they were identified as being distinct from appeals by convicted persons. The majority judgments explain the approach taken in these authorities in the following way at [17]:
The treatment of Crown appeals against sentence as “exceptional” indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy. This was reflective of a wider resistance to the construction of statutes, absent clear language, so as to infringe upon fundamental common law principles, rights and freedoms.
It was in that context that the judgment recorded that, as a specific application of the principle of legality, it was appropriate to prefer a construction of a statute which provided for a Crown appeal against sentence in a way that required error on the part of the primary judge to be demonstrated before the sentence was increased: at [20].
The approach taken in Lacey is one which gives effect to the principle of legality in the context of interpreting the meaning of words in a statute. In that case it had the consequence that the reference to the Court of Criminal Appeal’s “unfettered discretion” was found to require the demonstration of error on the part of the sentencing judge prior to that discretion being exercised.
The interpretive exercise in Lacey was similar to that which was engaged in Peel, namely, considering whether the legislation had sufficiently clearly stated its intention to detract from rights traditionally protected by the common law. 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].
The ongoing acceptance by the High Court of the statements in Griffith as matters relevant 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 in JW and the decision in Bui. French CJ and Gageler J referred with apparent approval to the statement in Malvaso that what Barwick CJ said in Griffiths should be recognised as providing “general and authoritative guidance to Courts of Criminal Appeal of this country”: CMB at [35], citing Deane and McHugh JJ in Malvaso at 234 . Kiefel, Bell and Keane JJ referred with approval to the decision in Everett affirming Barwick CJ’s statement of principle and noted that both Malvaso and Everett have been applied even where there is no statutory requirement upon the Crown to obtain leave to appeal against a sentence: CMB at [63]. In doing so their Honours necessarily rejected the submission made by the Attorney-General that those decisions had no application to the disposition of prosecution appeals in NSW where no such leave was required: CMB at [61].
The acceptance in CMB that the decisions in Malvaso and Everett apply in NSW where there is no requirement upon the Crown to obtain leave to appeal against a sentence makes it impossible to contend that the absence of any such requirement in the Territory provides a basis for failing to apply the principles stated therein.
Notwithstanding the fact that the statements by Barwick CJ in Griffiths may be seen as a poor foundation for principles which are generally applicable to Crown sentence appeals, the course of decisions of the High Court since then mean that it must be accepted as being applicable to Crown sentence appeals in the Territory. That, of course, does not determine how, within such an appeal, the principles articulated in Griffiths are to be given effect. That is an issue to which we will return shortly.
A pre-Bui statement of the “principles which apply to Crown appeals” is provided by the decision in R v Clarke [1996] 2 VR 520 (Clarke) in which Charles JA stated a series of “rules” applicable to Crown appeals. The statement of these “rules” was adopted as correctly stating the law in the Territory by Cooper and Weinberg JJ in R v Lappas [2003] ACTCA 21;152 ACTR 7 at [124].
The rules were stated by Charles JA as follows (at 522):
1. An appeal by the Crown should be brought only in "the rare and exceptional case" (Everett at 299) to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy" (Malvaso at 234).
2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3).
Allpass is also authority for the following propositions:
4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.
Following Bui and Chatfield, the position in relation to the Clarke rules is as follows:
(a)Rule 1 is a principle which is within the control of the Director, rather than the court, as there is no requirement for leave to appeal and double jeopardy is not a relevant sentencing principle.
(b)Rule 2 is implemented both as part of the Director’s decision-making as to whether or not to bring an appeal and as part of the determination by the court of whether a Housev The King error has been established. It may also be relevant to the exercise of the residual discretion.
(c)Rule 3 is implemented by the accepted interpretation of the scope of an appeal as limited to House v The King errors.
(d)Rule 4 is no longer applicable following the decision in Bui and Chatfield which deny that double jeopardy is a relevant sentencing principle in relation to Commonwealth and Territory offences.
(e)Rule 5 remains applicable but does not allow the application of the double jeopardy principle as part of the discretion.
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].
The issue in this case
The question in this case is whether or not in a Crown sentence appeal in which specific error is found, it is also necessary to establish that the sentence imposed was manifestly inadequate before the court will grant relief.
An affirmative answer was given by the NSW Court of Criminal Appeal in R v Reynolds [2004] NSWCCA 51 (Reynolds) at [26] where Simpson J (with whom Levine and Barr JJ agreed) found that a specific error would only warrant upholding a Crown appeal where a manifestly inadequate sentence was imposed. Her Honour said:
I am satisfied, however, that counsel for the respondent is correct in his contention that the ultimate question is whether the sentence has been shown to be manifestly inadequate. That does not exclude the identification of specific error, where it can be shown, that may explain how manifest inadequacy came about. Identification of specific error alone is not sufficient to warrant upholding a Crown appeal; the Crown must go further and show that (possibly in the light of, or as a result of, the error) a manifestly inadequate sentence was imposed.
In R v Janceski [2005] NSWCCA 288 (Janceski) the NSW Court of Criminal Appeal held that, in an appeal under s 5D of the Criminal Appeal Act, it is necessary to establish manifest inadequacy in addition to specific error in order to warrant the granting of relief. In that case Hunt AJA rejected an argument that one error (making sentences wholly concurrent) was cancelled out by another error (in taking multiple deaths into account by way of aggravation). His Honour said, without reference to authority (at [25]):
I would reject that somewhat facile argument, and in any event I reject the argument that in the present case error A cancelled out the effect of error B. But I do accept that the only issue in this appeal is, in the end, whether the total sentence imposed – even if erroneously reached by the sentencing judge – was manifestly inadequate in the circumstances of this case. The mere demonstration by the Crown of legal error by the sentencing judge in this case does not throw the sentence open for redetermination unless the sentence he imposed is itself objectively manifestly inadequate. That issue must be reserved until the other errors which the Crown asserts have been considered.
His Honour went on to find that the sentences were inadequate and that “In the present case, the extent of the inadequacy is itself indicative of error of principle.”: at [37]. Spigelman CJ and Howie J agreed with Hunt AJA.
The decision in Reynolds was followed in NSW in R v Hoskins [2004] NSWCCA 236 at [45]. It was followed in the Territory in Director of Public Prosecutions v Ip [2005] ACTCA 24 at [38] where the court said “to provoke actual intervention by the appellate court, even if some specific error can be pointed to, it is necessary to show that the error has resulted in a sentence that is manifestly inadequate.”: at [38].
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 King error by showing either patent or latent error. Second, the Crown needed to establish manifest inadequacy of the sentence. Third, it needed to negate any reason why the residual discretion should not be exercised.
The requirement 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).
The textual foundation for the Reynolds/Janceski approach is not clear, although it must be noticed that there is express reference in s 5D of the Criminal Appeal Act to the Court of Appeal having “discretion” to vary the sentence and impose such sentence “as to the said court may seem proper”. The restriction contemplated by Janceski involves a judicially created qualification on the manner in which that discretion, granted by the statute, should be exercised having regard to the court’s understanding of the limiting purpose of a Crown appeal.
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 Honour said (at [6]): “The power of this Court to intervene and resentence the offender is engaged by any material error”. His Honour recognised that the potential inadequacy of the sentence would be a factor to be addressed in deciding whether to resentence.
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, the public interest dictated that a Crown appeal should only succeed where it was demonstrated that the sentence was manifestly inadequate. This submission was said to involve “some fundamental misconceptions about the nature of Crown appeals” under the relevant legislation: at [103]. The court identified that in Victoria, Crown appeals should no longer be considered as rare or exceptional. It pointed out that the Crown can rely upon each of the three types of error identified in House v The King. Finally, and most importantly for present purposes, the judgment said “the error must raise a matter of principle that needs to be addressed for the governance and guidance of sentencing courts, or in order to establish or maintain proper sentencing standards”: at [105]. This was “a limiting purpose which does not extend to the correction of sentencing errors relating only to the particular case”: at [105]. The court pointed out at [109]:
Nothing in any of the High Court’s judgments concerning Crown appeals suggests that only latent or residual error – the third type of error in House v The King – could warrant bringing or allowing an appeal. Where a specific error ground has the necessary quality to support intervention on a Crown appeal, no authority or principle dictates that there must be a further ground that the sentence is also manifestly inadequate, in order for the Director to bring or succeed on the appeal. (Footnotes omitted)
As to how this limiting purpose was to be practically implemented when the court’s jurisdiction was enlivened by a Crown appeal the court said (at [111]):
The adequacy of the sentence, and the relationship between the error and the sentences do, however, serve an important function in informing the manner in which the residual discretion whether to intervene may be exercised. One would ordinarily expect that Crown appeals would not be brought on grounds of specific error unless it could be demonstrated that the error had a significant material effect on the sentence imposed. If it is established that the error has the requisite quality, the degree to which the specific error affected the sentence and whether the sentence is manifestly inadequate will be matters highly relevant to whether the court should in the exercise of its discretion refused to intervene. Where the court declines to intervene, the judgment of the Court may still serve the primary purpose of Crown appeals, namely, to lay down principles for the governance and guidance of sentencing courts and to facilitate the maintenance of sentencing standards. (Footnote omitted)
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 between that offender and a co-offender. The majority, which allowed the appeal, recognised (at [1]) that, when considering Crown appeals against sentence under s 5D of the Criminal Appeal Act:
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. (Footnote omitted)
Later in the majority reasons the judgment provided (at [36]):
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion. (Footnotes omitted)
The footnote following the final sentence of this extract referred to the decision of the Court of Appeal of Victoria in Karazisis, which suggested that the relevant factors in Victoria included “delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown”: at [104]. Clearly this is a non-exclusive list but for convenience we will refer to these as the Karazisis factors.
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].
The Green/O’Neill approach gives effect to the purpose of Crown appeals as a factor to be considered when determining the weight to be given to any discretionary matter relevant to the exercise of the residual discretion. In that way the judicial statements about the purpose of Crown appeals are able to sit within the statutory framework and remain consistent with the approach to discretionary decisions articulated in House v The King. The purpose of Crown appeals can be seen as a judicially created principle reflecting a common understanding which provides the background against which the residual discretion is exercised. That common understanding is reflective of the burden placed upon the Crown to assist the sentencing judge and an approach of fairness and restraint expected on the part of the Crown in sentencing matters.
The High Court’s articulation of the limiting purpose of Crown appeals will operate as a factor relevant to the discretion of the Director whether or not to bring a Crown sentence appeal. It will be relevant to a question of statutory interpretation as an application of the principle of legality. It also provides a framework in which to exercise the residual discretion not to intervene in a Crown appeal.
In a Crown sentence appeal where specific error is found it is not appropriate to impose a judicially created additional requirement that the sentence be manifestly inadequate in order for the court to interfere with the sentence.
First, such a possible limitation has no statutory foundation. Although, having regard to the approach taken by the High Court to the statements in Griffiths which also have no statutory foundation, this fact could not be determinative, it is none the less a matter of significance.
Second, if applied at the stage of determining whether the sentence was erroneous, it is inconsistent with the approach in House v The King. There is no basis upon which to take a different approach to the detection of error in a Crown sentence appeal as opposed to an offender sentence appeal in circumstances where there is no statutory distinction drawn between such appeals.
Third, if seen as only applying to the exercise of discretion after the House v The King exercise has been completed, it would unnecessarily burden and distort the exercise of discretion. It would require that the pool of erroneously lenient sentences that fell short of being manifestly inadequate would remain uncorrected even if their correction would otherwise satisfy the purpose of Crown sentence appeals articulated in Griffiths. There is no sufficient reason why the discretionary power of the court should be confined in this way so as to narrow the circumstances in which relief might be granted. It would be particularly inappropriate to judicially create such a principle in an environment where the legislature has seen fit to statutorily prescribe in great detail the processes for the imposition of sentences and the considerations to which regard must be had and hence where the potential for a range of different kinds of specific error is increased.
As a consequence, in a Crown sentence appeal where specific error is established a further finding that the sentence imposed was manifestly inadequate is not a precondition to the finding that a ground of appeal is established and it is not a necessary requirement for an exercise of the residual discretion in a manner favourable to the Crown.
Residual discretion – the exercise of discretion in Crown sentence appeals
That leads to the next issue, namely, the factors that may inform the exercise of the residual discretion where, on a Crown sentence appeal, a specific error is established. In the Territory, the context in which this arises is one where there is no statutory difference between a Crown sentence appeal and an offender sentence appeal. In particular there is:
(a)no filtering mechanism such as a requirement for the Crown to seek leave to appeal; and
(b)no difference in the statutory language that would compel a different approach as between Crown and offender sentence appeals in relation to the granting of relief on such appeals.
Conceptually there are three different approaches that could be taken to the exercise of the undoubted discretion as to whether or not to grant relief on an appeal:
(a)both Crown and offender sentence appeals be treated, consistent with the statutory language, on the same footing without any particular limitation applicable only to Crown sentence appeals;
(b)the purpose of a Crown appeal as articulated in Green provides the context in which any other discretionary reasons (such as the Karazisis factors: see [80] above) are assessed, but is not an independent basis upon which to decline to grant relief; or
(c)the purpose of a Crown appeal as articulated by the High Court in Green provides a discretionary reason of itself as to why relief might be refused whether or not other discretionary factors are present.
Option (a) is consistent with the statutory language but in our view is not an available approach so long as the general statements of the High Court as to the limiting purpose of Crown appeals remain applicable. The statement in Green as to the limiting purpose of Crown appeals did not turn on the particular statutory language under consideration in that case. Similarly, a majority in CMB denied that the principles were only relevant where leave to appeal was required. The applicability of that language as a constraint on Crown appeals has been consistently accepted by this court.
Option (b) is an option in which the limiting purpose of a Crown sentence appeal informs the exercise of discretion but only where there is some other discretionary reason, such as the Karazisis factors, to not intervene. If there is some discretionary reason why the court should not intervene then that will be more potent if the allowing of the appeal would not advance the limiting purpose of such appeals.
The significance of option (b) is that it would not permit the court to decline to grant relief only because the correction of error would not advance the limiting purpose of Crown appeals. Instead, it would require the establishment of some other ground (such as one of the Karazisis factors) upon which to exercise the discretion and take into account the limiting purpose as part of the consideration of that issue.
Option (c) is an option which would give effect to the judicially articulated limiting purpose of Crown sentence appeals in circumstances where there is no statutory means whereby the court can give effect to that limitation. It would allow the discretionary dismissal of a Crown sentence appeal even where there was no other discretionary basis upon which to refuse relief. In other words, even in the absence of any of the Karazisis factors it would be open to the court to dismiss an appeal, even though specific error had been established, where correction of that error would not involve any matter of principle and would not involve the court laying down principles of governance and guidance for sentencing courts.
In our view, the limitation on the exercise of discretion that would be involved in option (b) should not be accepted and the correct approach is that in option (c). If the starting point is that there is a judicially created qualification upon the purpose of Crown sentence appeals then it is appropriate that such a qualification be considered directly as part of the discretion as to whether or not to grant relief. If the limiting purpose is accepted, there is no reason why its consideration should be contingent upon there existing some other discretionary factor to enliven the discretionary decision. To do so would be to unnecessarily constrain the exercise of discretion.
In our view, the limiting purpose may provide a basis to decline to intervene either by itself or in combination with other discretionary factors. The extent to which a sentence imposed following a specific error differs from the sentence that would be imposed following a resentence will obviously be a factor to be considered as part of the exercise of discretion as to whether to decline to intervene.
It may be that the references in O’Neill (at [106], [109], [111]) to grounds of appeal which have the “necessary qualities which would permit intervention on a Crown appeal” or the “necessary quality to support intervention on a Crown appeal” and to the error having “the requisite quality” are also designed to emphasise that the court will only exercise its discretion to intervene where to do so would be consistent with the limiting purpose for a Crown sentence appeal.
Similarly, the approach which we have outlined 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).
In our view, it is appropriate to say explicitly that the limiting purpose of Crown appeals is directly relevant to the exercise of the residual discretion. In this way, notwithstanding the absence of any requirement for leave or other statutory mechanism by which the limiting purpose upon Crown sentence appeals may be enforced, the court retains some direct control over the purposes for which Crown appeals are brought.
In summary the position is as follows:
(a)The statutory provisions do not draw any distinction between a sentence appeal brought by the Crown or by an offender.
(b)There is no statutory substantive or procedural obligation upon the Director which constrains the capacity of the Director to appeal against sentences.
(c)The statutory provisions recognise that the grant of relief on a Crown sentence appeal is discretionary.
(d)The appeal court will, in accordance with Bui and Chatfield, remain bound to impose a sentence which is appropriate, but the court retains a residual discretion to decline to intervene.
(e)The decisions of the High Court identify that the purpose of Crown appeals against sentence is to lay down principles for the governance and guidance of sentencing courts, rather than the correction of judicial error in particular cases.
(f)In the case of a Crown sentence appeal alleging a specific error, there is nothing in the relevant statutory provisions which would require as a precondition to the grant of relief that the sentence imposed also be manifestly inadequate.
(g)The purpose of Crown sentence appeals provides a framework in which the discretion whether or not to grant relief in such an appeal is to be exercised and may, of itself, provide a basis for the court to decline to intervene.
(h)In Crown sentence appeals where specific error is established the extent of any inadequacy of the sentence should be taken into account in deciding whether to intervene.
That position would change if the High Court altered its generally applicable statements as to the limiting purpose of Crown sentence appeals, or if the legislature took steps to make clear either that that Crown sentence appeals were to be treated in the same manner as offender sentence appeals or, alternatively, provided an express statutory limitation upon the circumstances in which Crown sentence appeals could be brought.
Conclusion in this case
In this case:
(a)a specific error of fact has been established;
(b)the sentence was lenient but not manifestly inadequate;
(c)no issue of principle arises from the factual error identified;
(d)notwithstanding the factual error, the sentencing judge’s statement that the objective seriousness of the offence was “below medium” remains accurate; and
(e)on a resentence any increase in the sentence would be modest.
In those circumstances, notwithstanding the absence of any factual matter (such as one of the Karazisis factors) being pointed to as a reason for exercising the residual discretion, we consider that the limiting purpose of Crown sentence appeals provides an appropriate basis on which to decline to intervene and hence would dismiss the appeal.
| I certify that the preceding one hundred and three numbered [103] paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell and Justice Mossop Associate: Date: 29 September 2020 |
LOUKAS-KARLSSON J:
Introduction
On 27 August 2019, the respondent was sentenced by Elkaim J (the sentencing judge) in relation to a single count of using a carriage service to groom a person under 16 years of age, contrary to s 474.27(2) of the Criminal Code 1995 (Cth) (Commonwealth Criminal Code).
The respondent was sentenced to 24 months of imprisonment commencing on 27 August 2019 and ending on 26 August 2021. The sentence was suspended with immediate effect on condition the respondent enter into a recognisance release order in the sum of $500 for 3 years duration, and to be of good behaviour and to be supervised by the Director-General of ACT Corrective Services. The prosecution now appeals against that sentence.
By way of Notice of Appeal dated 23 September 2019, the prosecution appealed from the sentence on the following grounds:
(a)The learned sentencing judge erred in finding that the offending was constituted only by the messages sent by the offender on 13 April 2018; and
(b)The sentence imposed was manifestly inadequate.
The facts of the offence can be summarised as follows. The complainant was an 11-year-old girl, TR, who was the daughter of a woman who was in a relationship with the respondent. The respondent communicated with TR over a period of time via messages on Instagram. These included somewhat innocuous exchanges where the respondent enquired after TR’s actions and general wellbeing. They also included other messages, such as “do you like being with me”; “I know you feel for me what I feel for you”; and “do you like me the same way I like you”. These messages culminated in a message on 13 April 2018 stating, “I want to see your nude body”, immediately followed by “yes or no”. Upon receiving this message, TR immediately told her mother about the messages, and the matter was shortly referred to police.
Reasons of the Sentencing Judge
The sentencing judge noted that on 3 June 2019, a jury found the respondent guilty of the offence of grooming, and that the respondent was not in court to hear the jury’s verdict as he had been committed, involuntarily, to a mental health facility: R v Ralston [2019] ACTSC 236 at [1]-[3]. The sentencing judge noted that the verdict was nonetheless taken with the consent of both parties.
The sentencing judge went on to summarise the facts relevant to the offence. Specifically, the sentencing judge found that the messages constituting the offence were confined to the two messages sent on 13 April 2018, which were “I want to see your nude body” and “yes or no”: at [6]. The indictment specified the time period of the offending as between 25 March 2018 and 13 April 2018. The sentencing judge noted, however, that “while the other possibly incriminating messages might be regarded as of contextual relevance, they cannot be seen as forming the basis upon which the offender was convicted”: at [5].
The sentencing judge found the objective seriousness of the offending to be “below medium”, at [8], while noting that “this finding should not be seen as ameliorating in any way the abhorrence which must be expressed as arising from [the] offender’s conduct”: at [9].
Further, the sentencing judge referred (at [10]-[15]) to the subjective features of the respondent. The respondent was born in 1969. He has five older siblings with whom he does not maintain contact, and he lost his mother at a young age. He had a largely positive upbringing, with his father as his main source of support. The respondent has one biological child and one stepchild but does not have contact with either of them.
The respondent left school at the end of Year 9. Since leaving school, he has been in ongoing employment with the Australian Defence Force and the Australian Federal Police (AFP), the latter in a civilian position. He resigned from the AFP following the charges being made against him and currently relies on Centrelink for his income.
The sentencing judge noted that the offender does not have a criminal record but recognised that “the significance [of this fact] is diminished in matters of this type”: at [13]. Further, the sentencing judge noted that the respondent has experienced some serious mental health issues. A forensic psychiatric report by Dr Barker, tendered in the sentence hearing, states that the respondent has a current diagnosis of an “adjustment disorder with mixed disturbance of emotions and conduct” and also “a differential diagnosis of a major depressive disorder, moderate”. It was suggested in this report that imprisonment would be more difficult for the respondent because of his mental health condition: at [15].
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).
It was submitted by the respondent at his sentence hearing that the most applicable of these cases was Nahlous, and therefore, it was appropriate not to impose a sentence of full-time imprisonment: at [16]. In response, the appellant referred to the fact that the offender in Nahlous had pleaded guilty and expressed considerable remorse: at [17].
The sentencing judge went on to make the following comments in relation to the imposition of a sentence of full-time imprisonment: at [18]-[20]:
I agree with the Crown’s general submission that imprisonment should almost flow automatically from conviction for an offence of this type. The grooming of children for sexual gratification of a person, and possibly sexual assault of the child is so reprehensible that prison should generally follow.
However as explained in Nahlous this is not an inevitable conclusion. It is also to be noted that Nahlous, despite the plea of guilty, involved an offender who had sent more than a thousand messages, most of them significantly more sexually detailed than the two messages in the present case.
I think this is a case where the exception can be applied so that the offender does not serve a period of full-time imprisonment. I think a lengthy period of being subject to a supervision order will meet the community’s interests as well as signify, by way of general deterrence, how seriously the courts look upon this type of conduct.
Grounds of Appeal
The appellant appealed against the sentence pursuant to s 37E(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act). The appellant raised two grounds of appeal:
(a)Firstly, that the sentencing judge erred in finding that the offending was constituted only by the messages sent by the offender on 13 April 2018; and
(b)Secondly, that the sentence imposed was manifestly inadequate.
The respondent made a concession in relation to the first ground of appeal. It was conceded that there was a specific error in relation to the approach to the facts.
In relation to the second ground of appeal, there were significant discussions in oral argument about the residual discretion and nature of prosecution appeals in Commonwealth sentencing matters, and in circumstances where specific error has been established. Parties were then invited to provide further submissions in relation to these matters.
Accordingly, the issues that arose in the course of the appeal are as follows:
(a)What was the extent of the error in relation to the number of messages constituting the offending?
(b)Was the sentence manifestly inadequate, and, if so, are there any factors relevant to the case that enliven the residual discretion?
(c)Where patent error is established, is the Court required to proceed to re-sentence, and what is the relevance of the residual discretion?
Issue 1: The error in relation to the dates of the offence (Ground 1)
The sentencing judge concluded that only the two messages sent on 13 April 2018 constituted the offence. The appellant submitted on appeal that this factual finding was in error. As noted above, the respondent conceded in oral submissions that the sentencing judge had erred in relation to the approach to the facts of the offending. That concession was properly made.
The prosecution case at trial was that the messages sent by the respondent to the victim between 25 March 2018 and 13 April 2018 were the communications that constituted the offending. The evidence at trial included nine pages of photographs of Instagram messages on the child’s iPad. These photographs clearly indicate the dates of the relevant messages; they begin with a message dated 25 March 2018, and include other messages dated 31 March 2018, 1 April 2018, 2 April 2018 and 11 April 2018.
An aide memoire given to the jury for the purpose of the prosecution’s closing submission compiled each of the Instagram messages between 25 March 2018 and 13 April 2018 depicted in the photograph. There were 16 messages on the aide memoire.
The relevant intention for a grooming offence is that the sender had the intention of making it easier to procure the recipient to engage in sexual activity. This can be contrasted with the offence of procuring under s 474.26 of the Commonwealth Criminal Code, which carries a higher maximum penalty, and in relation to which the relevant intention is “to procure” the recipient to engage in sexual activity.
The grooming offence under s 474.27 was amended in 2010 to remove a requirement that the communications be indecent. In relation to this, the following extract from the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, at 92 is relevant:
The practice of grooming encompasses a wide range of activity designed to build a relationship of trust with the child for the purposes of later sexually exploiting the child. The content of the communications between the offender and the child may not always be indecent – the grooming process is just as likely to involve platonic, ‘innocent’ exchanges.
From the reasons on sentence, it is apparent that the sentencing judge confined the relevant 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].
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) 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: Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [8].
It must be demonstrated that the factual finding was not open: Turnbull at [26], [32]. A factual error may be demonstrated, for example, if there is no evidence to support a particular factual finding, or if the evidence is all one way. Error can be identified, either in the approach to the fact finding exercise, or in the principles applied: AB v R at [59].
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 Yin v R [2019] NSWCCA 217 at [27].
The sentencing judge stated as follows (at [5]):
The evidence in the case did not allow any conclusion to be reached about the date of sending of any of the messages, other than the last two, sent on 13 April 2018. While the other possibly incriminating messages might be regarded as of contextual relevance they cannot be seen as forming the basis upon which the offender was convicted.
The conclusion by the sentencing judge that only the two messages sent on 13 April 2018 constituted the offence was in error: There were six relevant messages during the period of 25 March to 13 April 2018 where the requisite intention can be readily inferred, not only the two on 13 April 2018 highlighted by the sentencing judge:
· I miss you. Can we chat without you telling your mum. I know you feel for me what I feel for you – 1/4/2018
· I get the hint. If you don’t hug me when i next walk in i delete you and leave you in peace – 2/4/2018
· I may come over. Do you want me to – 2/4/2018
· Do you like me the same way as I like you – 2/4/2018
· I want to see your nude body – 13/4/2018
· Yes or no – 13/4/2018
In my view, specific error or what is often referred to as patent error has been demonstrated. The relevant messages were not only the messages on 13 April 2018. That factual finding was not open. The sentencing judge misdirected himself as to the dates.
Issue 2: Was the sentence imposed manifestly inadequate? (Ground 2)
Consideration
Appeal principles
The principles to be applied with respect to appeals alleging that a sentence is manifestly 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].
In Nicholas, this Court summarised the principles applying to sentence appeals alleging manifest inadequacy or manifest excess at [66]-[68].
A claim that a sentencing judge has erred in the exercise of their discretion calls into question 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].
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]:
(a) Manifest excess or manifest inadequacy is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.
(b) The relevant test is whether the sentence is unreasonable or plainly unjust. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or manifestly too short is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice.
(c) In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles.
(d) It is not enough to establish that a sentence is manifestly excessive or manifestly inadequate that the members of the appeal court would have imposed a different sentence.
Prosecution appeals
In R v Avery [2018] ACTCA 57 at [6] the Court summarised the relevant authorities relevant to prosecution appeals as follows:
(a) Although s 37E of the Supreme Court Act permits an appeal to the Court of Appeal from any order of the Supreme Court, courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly.
(b) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.
(c) Examples of the occasions for the bringing of a Crown appeal are:
(i) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(ii) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;
(iii) to enable the courts to establish and maintain adequate standards of punishment for crime;
(iv) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected;
(v) to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that public confidence in the administration of justice can be maintained; and
(vi) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.
(d) The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.
(e) In resentencing after a successful Crown appeal, the Court is bound to consider the matters set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) and impose a sentence that was appropriate in the first place.
In a similar vein, the correct approach was summarised in The Queen v Rappel [2019] ACTCA 11 (Rappel) at [10], where the Court stated:
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 the bringing of a Crown appeal, include, as stated in R v Clarke (1996) 2 VR 520 at 522:
(a) to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(b) to enable the Court to establish and maintain adequate standards of punishment;
(c) to ensure uniformity in sentencing, so far as the subject matter permits.
Submissions
Overall, the appellant submitted that the sentence imposed in this case did not have sufficient regard to the importance of general deterrence, in particular when considering the following factors:
(a)the victim was an 11-year-old girl, rather than an undercover police officer;
(b)there was significant physical proximity between the respondent and the child, due to the respondent’s relationship with the child’s mother;
(c)the conduct was insidious; and
(d)the conduct took place in the context of a position of trust, which the respondent abused.
The respondent contrasted the offence of grooming (s 474.27 Commonwealth Criminal Code), for which the respondent was convicted, with the offence of procuring (s 474.26 Commonwealth Criminal Code), which carries a greater maximum penalty of 15 years, and requires that offender have the intention “of procuring the recipient”, rather than “making it easier to procure the recipient”.
The respondent submitted the following in relation to the seriousness of the offending:
(a)none of the messages sent were sexually explicit;
(b)there was no discussion of sexual acts nor inquiries as to the experience of sexual matters;
(c)there were no explicit photographs or offers to provide photographs;
(d)there was no reference to specific sexual acts or sex in general; and
(e)there was no attempt to meet together without the presence of the victim’s mother.
Comparable cases
The respondent submitted that the authorities demonstrate a wide range of appropriate sentences available in cases of grooming and similar offences. In making this submission, the respondent referred to the following cases:
(a)Western Australia v Collier [2007] WASCA 250; A Crim R 310 (Collier): The respondent was convicted of three charges under Western Australian legislation that are analogous to s 474.26 (procuring) of the Commonwealth Criminal Code, albeit with a 10-year maximum penalty. Over a period of almost three weeks, Collier had engaged a person he thought to be a 12-year-old girl (actually a police officer) on four separate days. The conversations were sexually explicit. They included instructing the complainant how to masturbate, explaining sexual intercourse, and arranging to meet the complainant in order to have sexual intercourse with her. The respondent was arrested when he attended to meet the complainant. The appeal was allowed and he was sentenced to 18 months of imprisonment, with parole eligibility after 9 months.
(b)Asplund: A 61-year-old offender was found guilty of two counts of grooming, which, at that time, required that indecent material be transmitted. The offences were committed against a 13-year-old victim, and involved in excess of 640 text and multimedia messages and 48 telephone calls. The offending was manipulative and involved the transmission of sexually explicit photos. Ms Asplund, who held himself out to be 27 years of age, requested and received a photograph of the victim’s genitals. He further sought to arrange a meeting with the victim “for a spa, for sex and for a blow job” and also gifted approximately $2500 to her. A Crown appeal was upheld and the offender was sentenced to a head sentence of 7 years with a non-parole period of 4 years.
(c)Costello: Costello was found guilty of an offence of grooming, which, at the time, required the transmission of indecent material, as well as a further four counts of ‘Exposing a person under 16 to indecent material’, an offence pursuant to s 218A(1)(b) of the Criminal Code 1899 (Qld). The victim was a police officer posing as a 14-year-old girl. Over a four week period, the offender transmitted pictures and videos of his penis and scrotum, him touching his penis, masturbating to ejaculation, and shaving his pubic hair. Costello was sentenced to 27 months of imprisonment, with a non-parole period of 13.5 months. Leave to appeal against the sentence was refused.
(d)Nahlous: Nahlous, a 30-year-old man, pleaded guilty to a charge of grooming. A further five charges of ‘Sending indecent material’ contrary to 474.27A(1) of the Commonwealth Criminal Code were dealt with on schedule. The communications included the offender referring to french kissing the victim; calling the victim ‘sexy and hot’; asking the victim if she wanted help showering; asking the victim if there might be ‘sexual things’ between them; asking about the victim’s sexual history; enquiring as to what the victim was wearing; questioning the victim on how she kissed; and encouraging the victim to keep their communications secret on multiple occasions. The Court in Nahlous observed that the offending conduct did not fall into the typical pattern: at [80]. The victim knew who the respondent was and where he lived when she invited him to be her Facebook friend. The Court found that while the respondent referred to sexual topics, he did not send any images to the victim or refer to any sexual conduct of his own. At times the respondent had referred to the need to wait because of the victim’s age, and had rebuffed the victim’s suggestion that they meet. The offender was sentenced to imprisonment for 18 months, which was fully suspended on condition that he enter into a recognisance release order of three years’ duration to be of good behaviour and accept the supervision of Probation and Parole.
(e)Meadows: Meadows pleaded guilty to a single count of grooming and a single count of possessing child pornography. The offender used “sexually explicit and graphic language” in his conversations with a covert police officer whom he thought to be a 12-year-old girl. The conversations had occurred on three dates over the course of one week, involving 45 messages in total. The content of the messages which constituted the grooming offence were described by the Court in the following manner (at [6]):
During the course of the conversations, the applicant asked the female about her height, weight and breast size; said that he was 38 but preferred young girls; told her that he was in love with a 23-year-old in real life; asked her for ‘sexy’ photographs; asked if she would ever be in a sexual relationship with ‘a guy in his 30s’; told her that he wanted her to perform a sexual act with him; asked her if he was someone she would date if they lived in the same city; when she pointed out that they did not live in the same city, he asked her to think that they did; when she told him that she was not used to ‘dream-land’, he told her that if she was not willing to pretend, he would not bother. The applicant then blocked the covert police officer from further contact.
The Court also noted (at [42]) that the offender Meadows had graphically described the type of sexual conduct he wished to engage in, and had specifically asked her to appear on a web camera so that he could masturbate. The Court determined (at [45]) that “the explicitness of the language used in his communication did make the grooming offence more seriousness”. The appeal was dismissed, aside from a correction of part of the sentence, with the sentence of 12 months imprisonment with release after 3 months remaining on the grooming charge.
In relation to Collier, the respondent noted that cases which have dealt a similar offence under State legislation should be approached with caution. It was submitted that the offence with which the offender Collier had been charged under the Western Australian legislation was more analogous to s 474.26(1) of the Commonwealth Criminal Code, as the State offence required an intention to procure, rather than an intention of making it easier to procure, and had a maximum penalty of 10 years imprisonment.
Conclusion
The appellant must demonstrate that the sentence is manifestly inadequate, in that it is “plainly unjust”. Appellate intervention on this basis is not warranted unless, “having regard to all the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been 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].
The adequacy of the sentence must be assessed by reference to the guidepost of the maximum penalty. The sentencing judge was required to impose a sentence that was of a severity appropriate in all the circumstances and in doing so take account of such of the matters set out in s 16A(2) of the Crimes Act 1914 (Cth) as were relevant and known to the Court. The extent to which each of those factors was to be weighed in the balance was a matter for the judgment of the sentencing judge. The discretionary nature of that judgment necessarily entails that there is no single sentence that was just in all the circumstances.
In this case, the survey of comparable cases and consideration of all of the relevant sentencing factors including objective seriousness does not compel the conclusion that the sentence in this case was plainly unjust. The offence is not at the higher range of objective seriousness of cases that constitute this type of offending.
The appellant has not established that the sentence imposed upon the respondent is manifestly inadequate.
Issue 3: Where patent error is established, is the Court required to proceed to re-sentence, and what is the relevance of the residual discretion?
The appellate jurisdiction of the Court of Appeal is derived pursuant to Pt 2A of the Supreme Court Act. The powers of the Court in relation to an order appealed from are set out in s 37O which relevantly states:
37O Orders on appeal
(1) The Court of Appeal has the following powers in relation to the order appealed from:
(a) to confirm, reverse or amend the order;
(b) to give any order it considers appropriate, or refuse to give an order applied for;
(c) to set aside the order (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate;
(d) to set aside the verdict and order in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered;
…
(7) In a criminal matter, the powers of the Court of Appeal in an appeal against sentence (whether by the prosecution or defendant) include the following powers:
(a) to increase or decrease the sentence;
(b) to substitute a different sentence.
The application of Pt 2A of the Supreme Court Act to ACT offences is self-evident. Pt 2A applies with equal force to offences against the laws of the Commonwealth, and relevantly the Commonwealth Criminal Code, pursuant to s 68 of the Judiciary Act 1903 (Cth).
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 vMiller), 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 “double 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).
The appellant submitted in their original written submissions that the Court must find that an impugned sentence was manifestly inadequate before the discretion to resentence and consideration of the residual discretion is enlivened on an appeal alleging patent error. In subsequent written submissions there was a change of approach by the appellant. 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:
We will consider [the ground of manifest inadequacy] only briefly. As we have found specific error, it will be necessary to re-sentence the respondent in any event.
…
There is nothing about the starting points for the sentences that suggests manifest inadequacy.
In contrast, the appellant noted that in R v Miller at [25] a different approach was adopted in relation to manifest inadequacy:
On a Crown appeal, it would be inappropriate, based upon a specific error such as that alleged in the present matter, to interfere with the sentence imposed unless it was clear that the sentence was outside the range of sentences available to the primary judge in the proper exercise of his sentencing discretion. In other words, the real relevance of a failure by the primary judge to refer to the matters mentioned above is by way of providing an explanation for the imposition of a sentence which was manifestly inadequate, if that be the case.
(Emphasis added)
A similar statement of the law was made by the Court in Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 (DPP v Ip) where it was stated:
…to provoke actual intervention by the appellate court, even if some specific error can be pointed to, it is necessary to show that the error has resulted in a sentence that is manifestly inadequate.
This ostensible conflict in approach also appears in the NSW case law on prosecution appeals against sentence. In R v Janceski [2005] NSWCCA 288 (Janceski) at [25] Hunt AJA, with the agreement of Spigelman CJ and Howie J stated that manifest inadequacy must be demonstrated:
The mere demonstration by the Crown of legal error by the sentencing judge in this case does not throw the sentence open for redetermination unless the sentence he imposed is itself objectively manifestly inadequate. That issue must be reserved until the other errors which the Crown asserts have been considered.
In contrast, in Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 (Burton) at [6], [33] Basten JA held (with the agreement of Rothman and Cavanagh JJ) that:
The power of this Court to intervene and resentence the offender is engaged by any material error. On the other hand, resentencing is in the discretion of the Court and a further error may be material to the exercise of that discretion.
…
Although the Director alleged as a third ground that the sentence was manifestly inadequate, it is not necessary to consider that ground in circumstances where a specific material error has been identified. On the other hand, the potential inadequacy of the sentence is, of course, a factor to be addressed both in resentencing and considering whether to resentence.
The appellant noted that the Victorian position with respect to this issue is settled in Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 256 A Crim R 469 (O’Neill) at [108] where the Court rejected the submission that the prosecution could not succeed in an appeal unless it could establish both specific error and manifest inadequacy of sentence on the basis that this would “unduly confine the circumstances in which a Crown appeal may be brought”.
It is also noteworthy in this context that O’Neill affirmed (at [103]) that the principle that prosecution appeals should only be made in rare and exceptional circumstances no longer applies in Victoria.
The appellant’s ultimate submission on this issue was that the correct approach to the discretion to re-sentence is the approach identified in Toumo’ua. It was further submitted that if the re-sentencing discretion is enlivened by the identification of a specific error, the Court then considers the residual discretion, including whether the prosecution has discharged the onus of persuading the Court not to exercise the residual discretion.
The respondent’s ultimate submission was that where the Court finds specific error, it is required to consider whether to exercise the residual discretion, with part of that consideration being directed towards whether there are any matters of principle requiring guidance. It was submitted that in the absence of a determination that a sentence is manifestly inadequate (by reason of identifiable specific error or independently) the residual discretion ought ordinarily be exercised, on the basis that guidance on matters of principle can be achieved in conjunction with a dismissal of the appeal.
Therefore, both the appellant and respondent do not cavil with the proper relevance of the residual discretion. The point of distinction is the approach identified in Toumo’ua.
The factors which the Court may take into account when considering whether to exercise the residual discretion are not closed, the discretion may be exercised for 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].
From the foregoing, a question that appears to arise on the authorities is whether the approach to be adopted in a prosecution appeal where a patent error is found is one of three alternatives:
(a) The first alternative being that the Court must proceed to the question of considering manifest inadequacy. If manifest inadequacy is not found there is no need to proceed to the question of residual discretion or resentence: Janceski, R v Miller, DPP v Ip;
(b) The second alternative being that the question of manifest inadequacy falls to be considered under the rubric of the residual discretion: Burton.
(c) The third alternative being ostensibly that upon the finding of specific error it is “necessary to re-sentence… in any event”: Toumo’ua at [83]
It must be said that in practice the distinction between alternative one and alternative two may be of little practical effect. The third alternative is in a different category.
In this case patent error has been found but not manifest inadequacy. In my view, whether the question of manifest inadequacy is notionally considered separately, prior to the question of the residual discretion or as part of the residual discretion is of no moment in this case. Though the better view may be that the question of manifest inadequacy falls to be considered under the rubric of the residual discretion.
Where patent error has been identified but not latent error the Court must consider whether the error is such that guidance on principle is required and whether the sentence was manifestly inadequate. In this case guidance is not called for as the error was an error of fact. In the usual course the Court should only intervene where manifest inadequacy is also demonstrated. Manifest inadequacy, or lack thereof, is a factor that may be considered separately or may be considered as part of the decision as to whether to exercise the residual discretion once a patent error has been identified. This approach incorporates the first and second alternatives.
Whether described as a part of the residual discretion or otherwise is of no real moment in a practical sense, as set out above. It is a question of substance, not form. The issue of substance is that the question of manifest inadequacy must be considered as part of the purpose of prosecution appeals.
This approach is consistent with R v Miller at [25], DPP v Ip at [24] and [38], and R v Reynolds [2004] NSWCCA 51 (R vReynolds) at [26]-[27]. The third alternative is not consistent with authority as set out below.
In R vMiller, the Court of Appeal (Burns and Loukas-Karlsson JJ) stated at [25]:
We do not accept that the primary judge entirely failed to consider and assess the objective seriousness of the offence. At worst, there may have been a failure to take into account relevant matters in assessing the objective seriousness of the offence. In our opinion, however, it is unnecessary to go so far as to determine this issue. On a Crown appeal, it would be inappropriate, based upon a specific error such as that alleged in the present matter, to interfere with the sentence imposed unless it was clear that the sentence was outside the range of sentences available to the primary judge in the proper exercise of his sentencing discretion. In other words, the real relevance of a failure by the primary judge to refer to the matters mentioned above is by way of providing an explanation for the imposition of a sentence which was manifestly inadequate, if that be the case.
(Emphasis added)
In DPP v Ip, the Court of Appeal (Higgins CJ, Gray and Madgwick JJ) referring to R v Reynolds stated at [38]:
…[T]o provoke actual intervention by the appellate court, even if some specific error can be pointed to, it is necessary to show that the error has resulted in a sentence that is manifestly inadequate.
(Emphasis added)
In R v Reynolds the NSW Court of Criminal Appeal (Simpson J, Levine and Barr JJ agreeing) stated at [26]-[27]:
I am satisfied, however, that counsel for the respondent is correct in his contention that the ultimate question is whether the sentence has been shown to be manifestly inadequate. That does not exclude the identification of specific error, where it can be shown, that may explain how manifest inadequacy came about. Identification of specific error alone is not sufficient to warrant upholding a Crown appeal; the Crown must go further and show that (possibly in the light of, or as a result of, the error) a manifestly inadequate sentence was imposed.
(Emphasis added)
R v Miller, R v Reynolds, and DPP v Ip may be contrasted with Toumo’ua, which dealt with patent errors with respect to the correct approach to setting discounts for pleas of guilty and provided guidance on the setting of non-parole periods in certain circumstances. The nature of the errors identified in Toumo’ua it could be argued necessitated intervention given the direct effect upon the actual sentences which had been imposed. Nevertheless, manifest inadequacy was not specifically found but rather that “[t]here [was] nothing about the starting points for the sentences that suggests manifest inadequacy”: Toumo’ua (the Court, per Murrell CJ, Rangiah J, and Walmsley AJ) at [89]. Further, the residual discretion was not considered. Rather the residual discretion in NSW was discussed (at [11]) in accordance with Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green). This was contrasted (at [12]): “However, as noted above, in this jurisdiction the [Supreme Court Act] does not distinguish between re-sentencing in the case of a successful prosecution appeal and re-sentencing in the case of a successful offender appeal”.
In Rappel the Court of Appeal (Murrell CJ, Mossop and Bromwich JJ) underlined that the finding of specific error in relation to a failure to give adequate reasons upon sentence was not enough on a prosecution appeal [25]:
However, that error is only of moment in terms of the outcome of the appeal if the sentences arrived at were also manifestly inadequate.
The statement of the NSW Court of Criminal Appeal in Janceski at [25] is consistent with the first approach to patent error. In Burton, an example of the second approach, despite determining that “the judge approached the sentencing exercise on a legally erroneous basis” (at [45]) and the observation that the sentence was “lenient” (at [61]-[65]), the Court nevertheless came to a unanimous decision to dismiss the appeal.
It is also important to note that in AB v The Queen [1999] HCA 47; 198 CLR 111 and Kentwell, the High Court was dealing with appeals by offenders, not appeals by the prosecution. Self-evidently, the question of the residual discretion therefore does not arise.
At this juncture it is well to recall the primary purpose of a prosecution appeal. The primary purpose of an appeal instituted by the prosecution is to lay down principles for the governance and guidance of courts with the duty of sentencing convicted persons: Green at [1]. In CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 (CMB) at [55] the High Court affirmed the following passage from Green with respect to the limitations inherent in that purpose (at [36]):
That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.
Severity appeals by an offender, in contrast to prosecution appeals, are concerned with the correction of judicial error in particular cases: Green at [1]. The purpose of prosecution appeals extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing: Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573 (Lacey) at [16]; Everett v The Queen (1994) 181 CLR 295 (Everett) at 300; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [61]-[62].
Once error is identified in a prosecution appeal, the Court is not obliged to embark on the resentencing exercise: R v JW [2010] NSWCCA 49; 77 NSWLR 7 (R v JW) 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 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.
In CMB Kiefel J (as her Honour then was), Bell, and Keane JJ underlined the distinction between offender and prosecution appeals (at [54]):
Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King. Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient.
(Emphasis added; Citations omitted)
In summary, in a prosecution appeal, whether Commonwealth or otherwise, where specific or patent error is found the Court must, in my view, consider manifest inadequacy and the residual discretion.
Under s 37O of the Supreme Court Act, the Court of Appeal has wide powers in relation to appeals. The Court has an overriding discretion and may decline to intervene on a Crown appeal even where there has been an error of principle: see Duffy at [103]-[104] referring to Green at [43] and the residual discretion. Further, the residual discretion has survived the abolition of “double jeopardy” as a consideration in re-sentencing: Munda at [65]-66]; Duffy at [104]; R v Flowers [2014] ACTCA 13 at [78]-[79].
Harrington at [160] underlined that in determining a prosecution appeal against sentence, this Court retains a residual discretion to decline to interfere with the sentence, even where it is found to be manifestly inadequate: Green per French CJ, Crennan and Kiefel JJ at [1]-[2]. The prosecution, when asserting manifest inadequacy is required to “negate any reason why the residual discretion of [the Court] not to interfere should be exercised”: CMB at [34].
In Munda, at [67] the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler, and Keane JJ) referred with approval to the extensive consideration and careful analysis by Buss JA of the residual discretion: Western Australia v Munda [2012] WASCA 164; 43 WAR 137 at [145]-[257]. In that analysis Buss JA recorded that the discretion and the content of the factors in a particular case under the same section, will differ depending on whether the appeal is commenced by an offender or a prosecutor.
This dichotomy, Buss JA stated (at [240], [253]) is based on the different purposes of appeals by offenders and appeals by the prosecution. The dichotomy is not based on difference in the statutory text:
[It] is attributable to the different purpose underpinning appeals by offenders, on the one hand, and appeals by the State (or the Crown), on the other. See Green, where French CJ, Crennan, and Kiefel JJ observed (at [1]):
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the CriminalAppeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons” (Griffıths vThe Queen (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.
…
But, as I have mentioned and as noted in Green, the factors and the content of the factors which are relevant to the exercise of the discretion under s 31(4) in the context of a State (or Crown) appeal, as distinct from the factors and the content of the factors which are relevant in the context of an appeal by an offender, are different because of the different purpose underpinning a State (or Crown) appeal. This dichotomy is not attributable to any difference in the statutory text governing the rights of appeal against sentence. Nor is it attributable to the common law concept of double jeopardy, which, as I have mentioned, has been abrogated by s 41(4)(b).
(Emphasis added)
It may be argued to be theoretically possible that specific error in House v The King terms, without more, could lead to re-sentence without the conclusion of manifest inadequacy. While arguably theoretically possible, that runs counter to the distinction between prosecution appeals and offender appeals underlined by the High Court. Offender appeals are concerned with the correction of error in individual cases: Green at [1]. The primary purpose of a prosecution appeal is to lay down principles for the governance and guidance of the courts: Green at [1], [36]. This limiting purpose does not extend to general correction of error made by sentencing judges. That is the framework relevant to the discretion: Green at [36]. The purpose of prosecution appeals extends to doing what is necessary to avoid manifest inadequacy or inconsistency: see Lacey at [16]. See also Bugmy at [24], Dinsdale at [61], Everett at 300.
An analysis that sets out that establishing manifest inadequacy is not necessary, is in my view, contrary to long established and settled principle. Such an analysis cuts across these time-honoured legal principles and posits a seeming equivalence between offender and prosecution appeals, as both primarily concerned with correction of error in individual cases. That is not the case. There is not an equivalence. The purpose of Crown appeals is a limiting purpose to establish sentencing principles and achieve consistency in sentencing: Griffiths at [53]; Green at [1]; Reeves v The Queen; R v Reeves at [14]-[15]. This important distinction cannot be overlooked.
The reference to ‘matter of principle’ by Barwick CJ must be understood as encompassing what is necessary to avoid manifest inadequacy or inconsistency in sentencing standards: Everett at 300; Munda at [68]-[69]; CMB at [35]. This explanation of the nature of prosecution appeals has since been said to represent general and authoritative guidance to the Courts of Criminal Appeal of this country: Malvaso at 234; CMB at [35].
In this case specific error has been established. Nevertheless, the sentence is not manifestly inadequate. Further, there are no matters of principle requiring guidance. In accordance with the authorities discussed above the appeal should be dismissed.
| I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 29 September 2020 |
25
65
11