High Court of Australia|1994-10-26|Before: Slicer J, Crawford JJ, Zeeman J

the application for leave notwithstanding that "the merits of a

proposed appeal constitute a relevant consideration to the question of

leave". His Honour expressly adverted to the significance of both the

against sentence and the fact that "Counsel who then appeared for the

Crown did not, at any stage of the proceedings, seek to advance any

submission to the learned sentencing judge that it would not be

appropriate" to impose "sentences of imprisonment which would be

wholly suspended insofar as their future operation was concerned".

Taking account of those matters, Zeeman J reached his dissenting

conclusion that leave to appeal should be refused. We can see no

error in either his Honour's reasoning or his conclusions.

11. On the other hand, Cox J and Crawford J, who constituted the

majority of the Court of Criminal Appeal, each failed to accord proper

significance to the failure of the Crown, in a context where the

sentencing judge had made clear that he was contemplating wholly

suspending any sentence of imprisonment, to make any suggestion that

such a course was inappropriate. Cox J expressly stated that he saw

"nothing in the conduct of the Crown in its presentation of the case

to the learned judge passing sentence which militates against granting

the Attorney-General leave to appeal". His Honour distinguished the

above comments of King CJ in Reg v. Wilton on the ground that, in

Tasmania, "a judge has an unfettered discretion to suspend the whole

or any part of a sentence" whereas, in South Australia at the time

when Reg. v. Wilton was decided, the discretion of a court to suspend

a sentence was limited to suspending the sentence wholly if the court

was of opinion that it was expedient so to do having regard to one or

more of a number of specified matters. With due respect, however,

that distinction does not affect the applicability of King CJ's

comments to cases such as the present where what is involved is an

order that the unexpired part of a term of imprisonment be wholly

suspended with the result that the offender was entitled to go free.

12. Crawford J would seem to have considered that the failure of the

Crown to make any submission in relation to the proposal to suspend

the sentences should not be taken into account by reason of the

provisions of s.386(11), (12) and (13) of the Tasmanian Criminal Code.

The effect of those sub-sections, which were added in 1987, is to

confer (sub-ss.(11) and (12)) upon "the prosecutor" an express "right"

to address a sentencing court with respect to sentence and to provide

(sub-s.(13)) that a failure by the prosecutor to exercise that right

"shall not be taken into account by the Court of Criminal Appeal in

determining an appeal against (the) sentence by the Attorney-General"

(emphasis added). Crawford J noted that the direction that a failure

of the prosecutor to exercise the "right" to address the court be not

taken into account by the Court of Criminal Appeal was confined to the

determination of an actual appeal as distinct from the preliminary

decision whether leave to appeal against sentence should be granted.

Nonetheless, his Honour concluded that the effect of those statutory

provisions was that the failure by a prosecutor to exercise the right

to address the court on sentence "should not usually be taken into

account against the Crown when considering an application for leave".

We respectfully disagree with that conclusion. In a context where the

legislature has carefully confined the statutory direction to the

determination of the actual appeal, we can see no justification for

giving it such an extended and, from the point of view of an offender,

adverse effect. To the contrary, it seems to us that the fact that

the statutory direction may preclude account being taken on an actual

appeal of the Crown's failure to suggest at the appropriate time that

an order suspending a sentence of imprisonment should not be made adds

emphasis to the need to attach proper significance to the implications

of that failure at the leave stage. It is unnecessary to consider

whether, in any event, the case was not one in which there was a

"failure by the prosecutor ... to exercise his right" to address on

sentence for the purposes of s.386(13). It should, however, be

mentioned that Mr Bugg QC informed the Court that the Crown had not

relied upon the sub-section before the Court of Criminal Appeal and

13. The judgment of Crawford J also discloses that his Honour fell

into error in that he failed to accord proper significance to the

consideration that the applications for leave to appeal against

sentence were by the Attorney-General. His Honour apparently thought

that that consideration weighed against a grant of leave only if it

were possible to identify some particular unfairness or injustice to

the appellants in the circumstances of the particular case. As has

been said above, the deep-rooted notions of fairness which underlie

the common law principle against double jeopardy require that a court

of criminal appeal approach an application by the Crown for leave to

appeal against sentence on the basis that such leave should only be

granted in the rare and exceptional case. Indeed, that approach was

particularly appropriate in the present cases where the effect of the

sentencing judge's orders had been that each of the appellants had

been released from custody and had been permitted and encouraged to

resume his place in the community and to set out on the path of

14. It was for the above reasons that we reached the conclusion that

the majority decision of the Court of Criminal Appeal granting leave

to the Crown to appeal against sentence should not be allowed to

stand. In circumstances where the appellants had spent some time in

custody (approximately twelve weeks in the case of Everett) and had

then been released pursuant to the orders made by the sentencing judge

(for approximately twenty weeks) only to be taken back into custody

(for approximately seven weeks) under the orders made by the Court of

Criminal Appeal, it was plainly inappropriate to delay the final

resolution of the cases by remitting the applications for leave to

appeal to the Court of Criminal Appeal for the reconsideration of that

court. That being so, the interests of justice were best served by

McHUGH J The facts and issues in these matters are set out in the

2. It is well established that, in those jurisdictions where the

Crown has a right to apply for leave to appeal against a sentence,

leave should be given only in exceptional circumstances ((9)

Griffiths v. The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310; Reg. v. Tait (1979)

24 ALR 473 at 476-477; Reg. v. Wilton (1981) 28 SASR 362 at 367-368;

Reg. v. Hillsley [1992] FCA 39; (1992) 105 ALR 560 at 565.). The need for

exceptional circumstances imposes a stringent barrier to the grant of

leave to appeal in such cases. But, in my view, that barrier is not as

stringent as the barrier that the Crown faces in this Court when it

seeks special leave to appeal against an order of acquittal or new

trial. To allow the Crown to appeal against an order setting aside a

conviction is a step that can be taken only in very exceptional

circumstances. The common law refused to set aside a verdict of

acquittal. That tradition has influenced the application of the

Judiciary Act 1903 (Cth) in so far as the general provisions of that

Act permit the Crown to apply to this Court for special leave to appeal

against an order setting aside a conviction. Some issue of fundamental

principle must ordinarily be raised before the Court will grant the

Crown special leave to appeal against such an order.

3. The approach of a court to a jurisdiction that specifically

authorises a Crown appeal against sentence must necessarily be

different from the approach that this Court takes on an application

for special leave to appeal against an order setting aside a

conviction. The jurisdiction to hear a Crown appeal against sentence

is conferred on a Court of Criminal Appeal so that that Court can

ensure that, so far as the subject matter permits, there will be

uniformity of sentencing. Uniformity of sentencing is a matter of

great importance in maintaining confidence in the administration of

justice in any jurisdiction. Sentences that are higher than usual

create justifiable grievances in those who receive them. But

inadequate sentences also give rise to a sense of injustice, not only

in those who are the victims of the crimes in question but also in the

general public. Inadequate sentences are also likely to undermine

public confidence in the ability of the courts to play their part in

deterring the commission of crimes. To permit the Crown, as well as

convicted persons, to appeal against sentences assists in maintaining

4. If a sentencing judge imposes a sentence that is definitely below

the range of sentences appropriate for the particular offence, the

case can be regarded as falling within the rationale for conferring

jurisdiction in respect of Crown appeals. It can be regarded as

sufficiently exceptional to warrant a grant of leave to appeal to the

Crown even if no question of general principle is involved. Such

cases, however, are likely to be rare. Defining the limits of the

range of appropriate sentences with respect to a particular offence

is a difficult task. What is the range in a particular case is a

question on which reasonable minds may differ. It is only when a

Court of Criminal Appeal is convinced that the sentence is definitely

outside the appropriate range that it is ever justified in granting

leave to the Crown to appeal against the inadequacy of a sentence.

Disagreement about the adequacy of the sentence is not enough to

warrant the grant of leave. Sentencing is too inexact a science to

make mere disagreement the criterion for the grant of leave to appeal

against the inadequacy of a sentence. The requirement of leave gives

rise to the inference that Parliament intended that something more

than mere error was to be the criterion of the grant of leave.

5. The sentences in the present matters seem lenient. At all events,

that was the opinion of every member of the Tasmanian Court of

Criminal Appeal. If the Court of Criminal Appeal had merely concluded

that the sentences were definitely below the appropriate range for

this class of offence, I would not have been in favour of the grant

of special leave to appeal in these matters even if I had thought

that that conclusion was incorrect. But the reasons of each of the

majority judges in the Court of Criminal Appeal contain a fundamental

error as to the proper approach of a Court of Criminal Appeal faced

with an application by the Crown for leave to appeal against sentence.

6. It is well established that, in the exercise of its discretion to

grant leave to appeal against a sentence, a Court of Criminal Appeal

must take into account the attitude of the Crown in the sentencing

court ((10) Tait (1979) 24 ALR at 477; Wilton (1981) 28 SASR at

367-368; Reg. v. Jermyn (1985) 2 NSWLR 194 at 203-205; Economedes

(1990) 58 A Crim R 466 at 469-470.). Even when it appears that the

sentencing judge has erred in a fundamental way that may affect the

administration of justice, fairness to the sentenced person requires

that the Crown's concurrence with, or failure to object to, a proposed

course of action by the sentencing judge must be weighed in the

exercise of the discretion. This is particularly so when the convicted

person has been given a non-custodial sentence. Private litigants who

appeal against judgments and orders are not usually allowed to withdraw

concessions made or concurrences expressed in the course of litigation.

As a general rule, neither should the Crown be permitted to depart

from a course of action that may have induced the sentencing judge to

7. In the present case, the Crown was aware that the sentencing judge

was contemplating suspending the sentences of imprisonment. But the

Crown did not suggest that it would be an error for him to do so. As

the judgment of the other members of this Court demonstrates, neither

of the majority judges in the Court of Criminal Appeal gave proper

weight to the attitude of the Crown before the learned sentencing

judge. In those circumstances, the exercise of the discretion to

grant leave to the Crown was vitiated by their Honours' errors and the

appropriate course for this Court was to deal with the matter itself.

8. It was for these reasons that I concluded that this Court should

grant special leave to appeal, allow the appeals, and make the orders

Everett v R [1994] HCA 49; (1994) 181 CLR 295; (1994) 124 ALR 529; (1994) 74 A Crim R 241 (26 October 1994)

imposed ((1) See, e.g., Whittaker v. The King [1928] HCA 28; (1928) 41 CLR 230 at

Stach [1985] FCA 55; (1985) 66 ALR 79 at 84; Cooke v. Purcell (1988) 14 NSWLR

51 at 57-58; Reg. v. Dowie [1989] TASSC 44; (1989) Tas R 167 at 177; Arnold

Hillsley [1992] FCA 39; (1992) 105 ALR 560 at 565.). That being so, a "court

against sentence is justified" ((2) Malvaso v. The Queen [1989] HCA 58; (1989) 168

Queen ((3) [1977] HCA 44; (1977) 137 CLR 293 at 310. See, to the same effect, at

v. Aloia (1983) WAR 133 at 134; Reg. v. Molina [1984] FCA 248; (1984) 2 FCR 508 at

Everett v R [1994] HCA 49;

At a glance

Court

Decision date

Before

Source

Judgment (187 paragraphs)

Parties

Cases Cited (22)

Everett v R [1994] HCA 49; (1994) 181 CLR 295; (1994) 124 ALR 529; (1994) 74 A Crim R 241 (26 October 1994)