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)