Crown Appeals Against Sentence

“The position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender … A Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced”. 1

The basic test that needs to be satisfied in order to induce the Court of Appeal to interfere upon an appeal by the Attorney-General is that the sentence was “outside the scope of a proper sentencing discretion”. 2

In any appeal the task of a Court of Criminal Appeal is to determine whether there was error made in sentencing the accused.  Where the Appellant has shown that in exercising the sentencing discretion the Learned Sentencing Judge:

• Acted upon a wrong principle;
• Allowed extraneous or irrelevant matters to guide or affect him;
• Mistook the facts; and / or
• Did not take into account some material consideration;

then that determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. 3

“A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. … The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.” 4

In Green -v- The Queen; Quinn -v- The Queen [2011] HCA 49 (6 December 2011) the High Court considered the exercise of the residual discretion to allow a Crown appeal against sentence.  The Court said allowing a Crown appeal may produce injustice in the following circumstances:

• Where it would give rise to disparity between punishment imposed on an offender and a manifestly inadequate but unchallenged punishment imposed on a co-offender. [40]
• Where there is delay in the hearing and determination of the appeal;
• The imminent or past occurrence of the release on parole or unconditionally of the Respondent; and
• Where the effect of re-sentencing adversely impacts on progress towards the  rehabilitation of the Respondent. [43]
• “The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.” [43]

In R -v- Henderson; Ex parte Attorney-General (Qld) [2013] QCA 63 (28 March 2013) Margaret Wilson J for the Court of Appeal at [51] said the Appellate Court will intervene where:

• The sentencing judge failed to appreciate the seriousness of the offending; 5 6 or
• It is necessary to maintain public confidence in the administration of justice. 7

That decision was affirmed in R -v- WAY; Ex parte Attorney-General [2013] QCA 398 (20 December 2013) [33]

Accordingly in any appeal against sentence by the Crown, the Crown must show very clearly that:

• An appropriate error was made in the exercise of the sentencing discretion of the Court below / at first instance;
• That error resulted in the sentence imposed on the Defendant being outside the range of appropriate sentences to be imposed upon the Defendant; and
• The sentence imposed was manifestly inadequate, in all of the circumstances.

If the Crown is successful in so doing, it can then submit to the Court a range of sentences which it says is appropriate in the circumstances. However it is conventional for the appellate court to impose:

• a substituted sentence towards the lower end of the range of available sentences 8; or
• “a revised sentence more moderate than should have been imposed in the sentencing court itself” 9

Because when offenders leave the sentencing court, they have a reasonably settled expectation that their matter has been effectively disposed of.

1. See Dinsdale -v- The Queen (2002) HCA 54 per Kirby J at para (62) 
2. See R -v- Melano ex parte Attorney-General (1995) 2 Qd.R. 186 at p.190. 
3. See House -v- The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ. at p 505;  Dinsdale -v- The Queen (2000) HCA 54 per Gleeson CJ and Hayne J at para (3) 
4. See Lowndes -v- The Queen, (1999) 195 CLR 665 at 671-672 (15) 
5. See GAS -v- The Queen (2004) HCA 22; (2004) 217 CLR 198 at 213-214 
6. See R -v- KU; ex parte Attorney-General (Qld) (No 2) (2011) 1 Qd R 439  at 464 (97), 465-466 (102), 467 (108). 
7. See Everett -v- The Queen (1994) HCA 49; (1994) 181 CLR 295 at 306 
8. See Dinsdale -v- The Queen (2002) HCA 54 per Kirby J at para (62) 
9. See R -v- Hays; ex parte A-G (1999) QCA 443 per de Jersey C.J. at para (3) 

Family Law – Determining Property Disputes

The law in relation to determining property disputes under s 79 of the Family Law Act (1975) (Cth) has been recently considered by the High Court of Australia in Stanford -v- Stanford (2012) 293 ALR 70; [2012] HCA 52; (2012) FLC 93-518 and by the Family Court of Australia in Sebastian & Sebastian (No 5) [2013] FamCA 191 (28 March 2013) per Young J.

A Court determining property disputes under s 79 of the Family Law Act (1975) (Cth) is required to:

• Identify the existing legal and equitable interests in property of the parties;
• Identify the divisible property of the parties;
• Evaluate whether it is just and equitable to pronounce a property settlement order having regard to the existing interests of the parties;
• Assess what orders should be made upon a consideration of all of the s 79(4) factors;
• Assess what orders should be made upon a consideration of all of the matters referred to in s 75(2); 1 and
• Ensure that the final proposed percentage division and orders are just and equitable 2

It is important to appreciate that the evidence before the court must indicate an order adjusting the interests of the matrimonial property is warranted in the specific circumstances of the case or else the court will not make any order adjusting the property interests of the parties.

1.  See Sebastian & Sebastian (No 5) (2013) FamCA 191 (28 March 2013) per Young J at (144) and (152) 
2.  See Sebastian & Sebastian (No 5) (2013) FamCA 191 (28 March 2013) per Young J at (160) 

Parenting Orders – A Change of Circumstances For The Parent or The Child

In Prewett & Mann [2013] FamCAFC 130 (27 August 2013) the Family Court (Ainslie-Wallace, Ryan & Le Poer Trench JJ) considered an appeal in relation to parenting orders and a change of circumstances.

Relevantly their Honours found:

• The rule in Rice & Asplund (1979) FLC 90-723 is a manifestation of the best interests principle.
• It is founded on the notion that continuous litigation over a child or children is generally not in their interests. 1
• The application of the rule is connected to the nature and degree of change sought to the earlier order 2

In each case where it is alleged that a significant change has occurred sufficient for a court to reconsider decisions previously made, the court must consider:

• Whether a court should be willing to embark upon another hearing concerning the child and parent; or
• Whether to do so would itself be demonstrably contrary to the best interests of the child 3

In so doing the court must look at:

• The past circumstances, including:
  (a)     The reasons for the decision; and
  (b)     The evidence upon which it was based.
• Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
• The nature of the likely changes.
• The potential detriment to the child or children caused by the litigation itself. 4

• The court must consider whether there has been a significant change of circumstances for both the parent and the child. [60]
• A raft of circumstances had arisen in the years subsequent to the consent orders [62]
• The child had become involved in the dispute [65]
• That involvement had an adverse impact on the child.
• The mother successfully demonstrated that the circumstances had changed sufficiently for the court to change the orders which were originally in place.

1. See Langmeil & Grange (2013) FamCAFC 31 
2. See SPS & PLS (2008) FamCAFC 16; (2008) FLC 93-363) 
3. See Marsden v Winch (2009) FamCAFC 152; (2009) 42 Fam LR 1 (the Full Court) 
4. See Marsden v Winch (2009) FamCAFC 152; (2009) 42 Fam LR 1 (the Full Court) 

Sole or Exclusive Occupation of The Former Matrimonial Home

In Saveree & Elenton [2014] FamCA 38 (31 January 2014) Stevenson J considered an application for sole or exclusive occupation of the former matrimonial home.

“The criteria for the exercise of the power under sec. 114(1) of the Family Law Act 1975 (Cth) [Injunctions] are simply that the court may make such order as it thinks proper. The matters which should be considered include:

• the means and needs of the parties;
• the needs of the children;
• hardship to either party or to the children and, where relevant;
• conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.” 1

• Those considerations are not exhaustive;
• They are not a fixed list of criteria which must be established for the application to be successful.
• Each case must be determined ultimately on its own facts.
• A judge is required to exercise his own discretion in the matter. 2

Held

• “The needs of the children weigh heavily in the determination of these proceedings.”
• “The children will be disadvantaged if they live again with both parents under one roof.”
• “In the present circumstances, there is no realistic prospect at all that the children would live with the husband.”
• “Accordingly, it falls to the wife to arrange for their accommodation.”
• “The children both told independent people, being school counsellors, that they were fearful for the safety of themselves and the wife if they continued to live with the husband.”
• “It was largely the conduct of the husband which caused the wife and the children to vacate the former matrimonial home.”
• “On an interim basis, the wife and children should have the benefit of occupation of the former matrimonial home.”

1.  Davis & Davis (1976) FLC 90-062 the Full Court (Evatt CJ, Pawley & Ellis JJ) (at page 75,309 
2.  Fedele & Fedele (1986) FLC 91-744 the Full Court (Fogarty, Murray and Nygh JJ) 

Financial Agreements: Misrepresentation, Non-Disclosure and Unconscionable Conduct

In Adame & Adame [2014] FCCA 42 (16 January 2014) (per Judge Jarrett) the wife applied to set aside a financial agreement.

The wife claimed that:

• The wife had entered into a financial agreement “under duress” (para [5]);
• The pressure that was brought to bear upon her by the husband to sign the financial agreement was illegitimate because it amounted to unconscionable conduct. (Para [143]);
• The husband “did not properly disclose all of his assets to her when the agreement was made” (para [5])
• While a statement of independent legal advice had been signed, her legal practitioner had not given her “the advice as required by s 90G”; and
• The wife “received no copy of the certificate” (para [151])

The Doctrine of Unconscionable Conduct

• If a stronger person enters into an improvident transaction with a weaker person who, in relation to the former, is in a position of special disadvantage that affects the weaker person’s ability to protect his or her own interests and;
• the stronger party either knows of the special disadvantage or knows of facts that would lead to constructive knowledge of that special disadvantage; and
• the stronger party takes advantage of the special disadvantage, either actively or by passively allowing the transaction to proceed; then
• the transaction may be set aside for unconscionable dealing or another equitable remedy may be applied. 1 2 3 4

• To secure relief in Equity, the Applicant must establish that the pressure that was brought to bear upon her by the Respondent to sign the financial agreement was illegitimate, in all the circumstances. 5
• Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct: 6

• It is not necessary for a victim to prove that the illegitimate pressure was the reason for him entering into a contract.
• It is sufficient that the illegitimate pressure was one of the reasons for the person entering into the agreement.
• Once the evidence establishes that the pressure exerted on the victim was illegitimate, the onus lies on the person applying the pressure to show that it made no contribution to the victim entering into the agreement 7 8

Held – Judge Jarrett

• The financial agreement is voidable at the election of the wife because it was entered into by the wife on the basis of a misrepresentation by the husband as to his assets [128]
• There was not proper disclosure of all material matters between the parties
• There was non-disclosure of material matters by the husband [134]
• The husband brought pressure to bear upon the wife to sign the financial agreement [141]
• The conduct of the husband amounted to unconscionable conduct [148]
• In that sense, the pressure that the husband brought to bear on the wife to sign the financial agreement was illegitimate. [148]

• The signed statement provided for the purposes of s.90G(1)(c) must be given by the legal practitioner who gave the advice for the purposes of s.90G(1)(b) of the Act. [155]
• There was no certificate signed by a legal practitioner that gave the wife the independent legal advice on the subject financial agreement as required by s.90G;
• Accordingly the subject financial agreement was not binding on the parties [156]

1. Saintclaire & Saintclaire (2013) FamCA 491 at (108) per by Ryan J 
2. The Commonwealth Bank of Australia -v- Amadio (1983) HCA 14; (1983) 151 CLR 447 per Gibbs CJ at (459) 
3. Louth -v- Diprose (1992) HCA 61; (1992) 175 CLR 621 
4. Adame -v- Adame (2014) FCCA 42 per Jarrett at (144) 
5. Adame -v- Adame (2014) FCCA 42 per Jarrett at (142) 
6. Crescendo Management Pty Ltd -v- Westpac Banking Corporation (1988) 19 NSWLR 40 per McHugh JA , with whom Samuels and Mahoney JJA agreed. 
7. Crescendo Management Pty Ltd -v- Westpac Banking Corporation (1988) 19 NSWLR 40 per McHugh JA 
8. Hogan and Hogan (2010) FMCAfam 1255) per Neville FM 

Social Media and Family Law Litigation

Rarely are family law cases decided purely in Court. Most of them rely intimately upon the evidence of the behaviour of the parties well before the trial begins. It surprises many litigants to discover that as a party to family law litigation, the entirety of their conduct will often be considered by the Court.

In cases relating to children the following are some important considerations for the Court:

• The ability to provide appropriate care for the children;
• Whether the parties take parental cooperation seriously;
• The capacity of a parent to foster a positive relationship between the child and the other parent;
• The amount of conflict between the parents;
• The extent to which the parents are able to communicate with each other.

Court experience has shown that parents achieve better outcomes in family law litigation when they can do the following:

• Demonstrate by their actions that they can be child focussed;
• Make decisions based around the needs of the child, rather than their own needs;
• Rise above the conflict between the parties;
• Remain calm and centred;
• Demonstrate stability in their personal circumstances and parenting decisions;
• Provide a safe, secure and stable environment for their children;
• Be honest in their dealings with the Court and others;
• Demonstrate generosity of spirit and flexibility;
• Develop a child-focussed parenting plan; and
• Demonstrate an understanding of the position of others.

Most people involved in family law litigation initially concern themselves with the behaviour of the relevant parties once the litigation has commenced.  Parties publicly airing their dirty laundry at that time is not uncommon. Some of that airing occurs on social media, such as Facebook, Twitter, YouTube, Instagram, Pinterest, MySpace, Skype, blogs and forums, and the parties may seek to use that material as part of their evidence in the litigation. Frequently litigants monitor the activities of the other party via what they post on social media. Extracts from social media, acquired by a `friend’ and provided to the other parent are routinely annexed to affidavits as evidence and submitted to the Court.  The Court is then usually asked to infer something negative about the publishing parent.  Courts exercising family law jurisdiction are now taking seriously this evidence from social media.  Accordingly social media posts made without forethought can have serious adverse consequences if they become part of the litigation.

When someone posts to social media they are participating in a social conversation in a public forum. By allowing other people to read what they have written, they are effectively publishing to the world at large.  That social media conversation may well be considered serious and used in subsequent legal proceedings as evidence against the person who posted the conversation.

People reveal information on social media directly, indirectly, deliberately and inadvertently.  It is possible to collate quite a dossier on a person based on what they post on social media.  That task is made easier when the following information is posted:

• The identity of family, friends, acquaintances and work colleagues;
• Where they go to school;
• Where they work;
• The company they keep;
• What they do for recreation;
• Where they shop;
• What they eat;
• What they do and where and when they do it;
• Parts of their personality.

What people may not realise is that material posted to social media, including photographs and location updates, during the relationship and before the dispute commenced in earnest can also have a significant impact on how the case before the Court is decided.  Earlier social media posts inconsistent with the position the litigant wishes to take at trial can be used to diminish the credibility of the litigant.  What may seem innocuous initially can become something significant when seen in the greater context of the trial.

A litigant whose credibility has become compromised can also find themselves in a less comfortable position than they would prefer when it comes time to negotiate any settlement.

Social media users need to think carefully about what they post or reveal on social media and what information they provide about themselves, their family and their friends. A reckless or poorly considered social media post can significantly prejudice a subsequent Court case.
It can be very difficult to undo the damage of such a reckless or poorly considered social media post.

Some lawyers advise that if you post on social media sites, you need to assume that what you post may be used against you. The profile a litigant portrays on social media may not be the profile that litigant ultimately wants to portray to the Court. Accordingly, if you do not want the Court to read your social media post, perhaps it is best that you do not post it.