Lacey v Attorney-General of Queensland

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Crennan,Kiefel,Bell JJ
• Judgment Date: 07 April 2011
• Neutral Citation: [2011] HCA 10,2011-0407 HCA B
• Docket Number: B40/2010
• Court: High Court
• Date: 07 April 2011

[2011] HCA 10

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ

B40/2010

Dionne Matthew Lacey

Appellant

and

The Attorney-General Of Queensland

Respondents

Representation

B W Farr SC with J A Fraser and A D Scott for the appellant (instructed by Howden Saggers Lawyers)

W Sofronoff QC, Solicitor-General of the State of Queensland with E S Wilson and G J D del Villar for the respondent (instructed by Crown Solicitor (Qld))

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with A M Dinelli intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))

M G Sexton SC, Solicitor-General for the State of New South Wales with L A Babb SC and J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

M G Hinton QC, Solicitor-General for the State of South Australia with K Hodder intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))

Acts Interpretation Act 1954 (Q), s 14A(1).

Criminal Code (Q), s 669A(1).

Lacey v Attorney-General of Queensland

Criminal law — Appeal — Appeal against sentence — Appeal by Crown — Where s 669A(1) of Criminal Code (Q) permitted appeal by Attorney-General against sentence and provided that appellate court ‘may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper’ — Where appellate court increased sentence without identifying any error by sentencing judge — Whether Crown must demonstrate error by sentencing judge before discretion to vary sentence enlivened.

Words and phrases — ‘appeal’, ‘unfettered discretion’.

ORDER

1. Appeal allowed

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 11 September 2009 and, in its place, order that the appeal to that Court be dismissed.

1 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ

Introduction

1 By s 669A(1) of the Criminal Code (Q) the Attorney-General of Queensland may appeal to the Court of Appeal of the Supreme Court of Queensland 1 against any sentence imposed by a trial court or a court of summary jurisdiction dealing with an indictable offence. The court hearing such an appeal ‘may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.’ 2

2 The question in this appeal is whether the Court of Appeal has the power under s 669A(1) to vary a sentence absent any demonstrated or inferred error on the part of the sentencing judge. The Court of Appeal answered that question in the affirmative. It held that the ‘unfettered discretion’ conferred by s 669A(1) meant that the Court 3:

‘in exercising its discretion must have regard to the sentence imposed below, but come to its own view as to the proper sentence to be imposed. In doing so, it must act in conformity with the principles relevant to the exercise of judicial power.’

Based on that construction of s 669A(1) the Court of Appeal, by majority 4, increased the sentence imposed upon the appellant for the crime of manslaughter 5. The construction was erroneous. For the reasons that follow the

appeal should be allowed, the order made by the Court of Appeal set aside and, in its place, an order dismissing the appeal to that Court made.

Factual and procedural background

3 On 6 May 2009, the appellant was convicted in the Supreme Court of Queensland of the offence of manslaughter. The Crown Prosecutor submitted that the appropriate sentence was 13 years before deducting two years served by the appellant while on remand. On 13 May 2009, the appellant was sentenced to 10 years imprisonment and declared to have been convicted of a serious violent offence. The trial judge said he would have sentenced the appellant to 12 years imprisonment but took into account two years which he had served on remand.

4 The appellant appealed against his conviction and applied for leave to appeal against his sentence. The Attorney-General also appealed against the sentence on the alternative grounds that it was ‘inadequate’ or ‘manifestly inadequate’. The particulars of both grounds of the Attorney-General's appeal were that:

Departing from the position taken by the Crown Prosecutor in sentencing submissions before the trial judge, the Solicitor-General of Queensland, appearing for the Attorney-General, submitted in the Court of Appeal that the appropriate range was 15 to 18 years imprisonment (before deduction for time served on remand). Thus, on the Attorney-General's submission, the appropriate range was 13 to 16 years after the deduction.

• •the sentence failed to reflect adequately the gravity of the offence generally and in this case in particular;

• •the sentence failed to take sufficiently into account the aspect of general deterrence; and

• •the sentencing judge gave too much weight to factors going to mitigation.

5 The appellant's appeal against conviction and application for leave to appeal against sentence were dismissed. The Attorney-General's appeal against sentence was allowed and the sentence increased to 11 years. On 24 June 2010, the appellant was granted special leave to appeal against the decision of the Court of Appeal allowing the Attorney-General's appeal.

6 At the hearing of the appeal to this Court the appellant was given leave to add a ground of appeal challenging the constitutional validity of s 669A(1) on the basis that, as construed by the Court of Appeal, it required that Court to engage in an activity repugnant to the judicial process. At the hearing of the appeal, the Court confined the parties to their submissions as to the construction of s 669A. As the matter can be decided on the constructional question, the constitutional question does not need to be considered.

7 Before turning to the decision of the Court of Appeal, it is necessary to consider the background leading to the enactment of s 669A in its original form in 1939 and its present form in 1975.

Crown appeals against sentence

8 An appeal is not a common law remedy. It requires the creation by statute of an appellate jurisdiction and the powers necessary for its exercise 6. There was, at common law, no jurisdiction to entertain appeals by convicted persons or by the Crown against conviction or sentence. In 1892, the Council of Judges of the Supreme Court of England and Wales recommended to the Lord Chancellor 7 that a Court of Criminal Appeal be established with jurisdiction to entertain appeals against sentence and to assist the Home Secretary, at his request, in reconsidering sentences or convictions 8. The recommendations for appeals against sentence were based upon the ‘great diversity in the sentences passed by different Courts in respect of offences of the same kind’ 9. The judges proposed

an appeal against sentence whereby a prison sentence could be reduced ‘if justice requires it’ and the Court, on such an appeal, should have power to increase the sentence ‘when the facts seem to need it.’ 10 The judges also recommended that 11:

‘[a]ny independent application to increase punishment should be made on the personal responsibility of the Attorney-General, who would only so apply in cases appearing to him to be of extreme or systematic inadequacy of sentence.’

9 The power to be conferred on the Attorney-General would be exercised only in rare cases but it was necessary in order to ‘attain and enforce a reasonable uniformity of sentences.’ 12 The legislature did not act on that proposal. The Criminal Appeal Act 1907 (UK) made no provision for a Crown appeal against sentence, although it empowered the Court of Criminal Appeal, hearing an appeal by a prisoner against sentence, to reduce or to increase the sentence 13. It was not until 1988 14 that the Attorney-General was empowered to apply to the Court of Appeal (Criminal Division) for leave to refer a case to it for undue

leniency in sentencing 15. The first common law jurisdiction to introduce a Crown appeal against sentence was Canada 16.

10 The right of appeal against sentence conferred upon a convicted person by s 3 of the Criminal Appeal Act 1907 (UK) was replicated in the Australian States 17. The first States to provide for a Crown appeal against sentence were New South Wales and Tasmania in 1924 18. Crown appeals against sentence were introduced at different times in the decades that followed in the other Australian States, the Australian Capital Territory and the Northern Territory 19.

11 Following the enactment of the Criminal Appeal Act 1907 (UK), the English courts soon established the proposition that for a convicted person's appeal against sentence to succeed there must be evidence that the sentencing judge had acted on a wrong principle or given undue weight to some of the facts proved in evidence. It was ‘not possible to allow appeals because individual members of the Court might have inflicted a different sentence, more or less

severe.’ 20 This Court adopted the same approach to appeals against sentence under the Criminal Appeal Act 1912 (NSW) in Skinner v The King21. Barton ACJ, with whom the other Justices agreed, said 22:

‘If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not.’

12 Crown appeals against sentence in New South...