appellant. Appeal allowed. Order of the Court of Appeal made on 11 September 2009 set aside and in its place order that the appeal to that Court be dismissed.
Key principles
The appellate jurisdiction conferred by the term 'appeal' in s 669A(1) of the Criminal Code (Q) requires that error on the part of the sentencing judge be demonstrated before the...
The principle of legality demands clear statutory language before a provision will be construed as authorising a Crown appeal against sentence that permits variation without...
Crown appeals against sentence are exceptional and should be brought only to establish a matter of principle, including manifest inadequacy or inconsistency in sentencing...
The distinction between jurisdiction and power must be maintained; the jurisdiction is to hear an 'appeal' while the power is the unfettered discretion to vary, and the former is...
Issues before the court
Whether the Court of Appeal may vary a sentence on an Attorney-General's appeal under s 669A(1) of the Criminal Code (Q) absent any demonstrated or...
Plain English Summary
When the Queensland Attorney-General appeals a criminal sentence saying it is too light, the Court of Appeal cannot simply substitute its own view of the correct sentence. It must first point to a specific legal mistake, factual error, or manifest inadequacy in what the trial judge did. Only then does the 'unfettered discretion' to impose a different sentence arise. This protects defendants from repeated attempts by the prosecution to increase punishment and respects the finality of sentencing decisions unless they are clearly wrong. The High Court overturned the Court of Appeal's decision to increase Lacey's manslaughter sentence because no such error had been identified.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,704 words · generated 24/04/2026
What happened
Dionne Matthew Lacey was convicted by a jury in the Supreme Court of Queensland of manslaughter on 6 May 2009. The sentencing judge, having heard the trial, concluded that a head sentence of 12 years was appropriate but reduced it to 10 years to account for two years spent in pre-sentence custody. A serious violent offence declaration was made. The Crown Prosecutor at first instance had submitted that a sentence of 13 years before deduction for time served was within range.
Cited legislation
14 cited instruments linked from this judgment.
The Attorney-General of Queensland appealed against sentence under s 669A(1) of the Criminal Code (Q), pleading in the alternative that the sentence was "inadequate" or "manifestly inadequate". The particulars alleged failure to reflect the gravity of the offence, insufficient weight to general deterrence, and excessive weight to mitigating factors. Before the Court of Appeal the Solicitor-General advanced a significantly higher range (15-18 years before deduction) than the Crown Prosecutor had sought at first instance.
Lacey also appealed his conviction and sought leave to appeal against sentence. The Court of Appeal (de Jersey CJ, Keane, Muir and Chesterman JJA; McMurdo P dissenting) dismissed Lacey's conviction appeal and leave application but allowed the Attorney-General's appeal, increasing the sentence to 11 years imprisonment. The majority did not identify any specific error of principle, mistake of fact, or manifest inadequacy in the sentencing judge's reasons. Instead it relied on the "unfettered discretion" conferred by s 669A(1) to reach its own view of the proper sentence after having regard to the sentence below.
Special leave to appeal was granted on 24 June 2010. The High Court confined argument to the construction of s 669A(1). By majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J dissenting) the Court held that the Court of Appeal had mis-construed the provision. Error on the part of the sentencing judge had to be demonstrated before the appellate discretion to vary the sentence was enlivened. Because the Court of Appeal had not made any such finding, the appeal was allowed, the Court of Appeal's orders set aside, and in lieu thereof the Attorney-General's appeal was dismissed. The constitutional argument that the provision, as construed by the Court of Appeal, required the Court to engage in activity repugnant to the judicial process was not reached.
Why the court decided this way
The majority began from the constitutional and common-law proposition that an appeal is a creature of statute. The jurisdiction and powers of the Court of Appeal under s 669A(1) must therefore be derived from the statutory text, context and purpose. The key textual indicator was the word "appeal" itself. That word was not to be emptied of content so that the provision simply conferred a power to resentence whenever the Attorney-General chose to invoke it. Rather, the jurisdiction was an appeal by way of rehearing on the materials before the primary judge. Such an appeal classically requires demonstration of legal, factual or discretionary error before the appellate court's powers are enlivened.
The majority placed heavy reliance on the principle of legality. Crown appeals against sentence represent a marked departure from traditional notions of fairness and the common-law rule against double jeopardy. Deane J's statement in Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 128-129, adopted in Byrnes v The Queen (1999) 199 CLR 1 at 26 [50], was quoted: a general statutory provision should not be construed as conferring a prosecution right of appeal against sentence unless a specific intention is manifested by very clear language. The Court emphasised that this was not merely an aspect of double jeopardy but a wider principle that statutes will not be read as effecting fundamental alterations to common-law principles governing the administration of justice unless the intention is unmistakable.
Legislative history reinforced this reading. When s 669A was first inserted in 1939 the Premier explained that the Crown should have the same right of appeal as a convicted person. That right, as understood in House v The King (1936) 55 CLR 499 and Skinner v The King (1913) 16 CLR 336, required error. The 1975 amendment inserting the phrase "unfettered discretion" was a response to R v Liekefett; Ex parte Attorney-General [1973] Qd R 355, which had required error. The Minister's Second Reading Speech could not, however, override the text. The words actually enacted still used the term "appeal" and did not expressly authorise variation without error.
The majority carefully distinguished jurisdiction from power. The Court of Appeal majority had elided the two, treating invocation of s 669A(1) as automatically requiring the Court to form its own view of the proper sentence. That approach was inconsistent with CDJ v VAJ (1998) 197 CLR 172 and with the supplemental powers in s 671B that limit the receipt of new evidence on sentence appeals. The confinement to the evidence before the primary judge was a powerful indicator that the appeal was by way of rehearing requiring error.
The practical consequences of the Court of Appeal's construction were also influential. It would deprive sentencing orders of substantive finality, allow the prosecution a "second bite at the cherry" (as acknowledged by the Solicitor-General), and produce a wilderness of single instances rather than authoritative statements of principle. By contrast, requiring error maintained the exceptional character of Crown appeals recognised in Griffiths v The Queen (1977) 137 CLR 293 and Everett v The Queen (1994) 181 CLR 295. The Court noted that the Court of Appeal had itself acknowledged the sentence was "inadequate" in its reasons on the conviction appeal, yet had not tied that conclusion to any identifiable House error when allowing the Crown appeal. In the absence of such a finding, and with no application for remitter, the appropriate order was to dismiss the Crown appeal outright.
Heydon J's dissent emphasised the ordinary meaning of "unfettered discretion" and the 1975 amendment's purpose of reversing Liekefett. He considered the word "unfettered" would be otiose if it applied only after error was shown. The majority, however, viewed the adjective as emphasising the width of the remedial power once error is established, not as removing the need for error.
Before and after state of the law
Before Lacey, the law in Queensland was unsettled but had largely settled around the Melano formulation. In R v Melano; Ex parte Attorney-General [1995] 2 Qd R 186 the Court of Appeal held that variation under s 669A(1) would ordinarily require discernible error or manifest inadequacy or excessiveness. Only in exceptional cases, such as to establish or alter a sentencing principle or range, would variation occur without such error. That approach was treated as consistent with House v The King and with the double-jeopardy principle. It had been applied for 15 years and was common ground in York v The Queen (2005) 225 CLR 466, although McHugh J and Callinan and Heydon JJ expressed doubts in obiter.
The Court of Appeal in the present matter, sitting as a bench of five, expressly reconsidered and departed from Melano. It held that the 1975 insertion of "unfettered discretion" was intended to remove any judicial fetter requiring error and that the Court was obliged to exercise the jurisdiction by coming to its own view of the proper sentence, subject only to acting judicially. This was said to implement the "undoubted intention of the Parliament".
After Lacey the position is clear. Section 669A(1) creates an appeal by way of rehearing. The Court of Appeal must identify error (whether overt or inferred from manifest inadequacy) before its discretion to vary is enlivened. Once error is shown the discretion is indeed unfettered, subject to ordinary judicial sentencing principles and the statutory regime (including the Penalties and Sentences Act 1992 (Q)). The decision restores alignment with the law applied to convicted persons' appeals and with the position in other Australian jurisdictions where Crown appeals are treated as exceptional.
The principle of legality is now expressly anchored to Crown sentence appeals in Queensland. Courts must not construe s 669A(1) so as to permit routine prosecution challenges to sentences that are merely arguable or where individual appellate judges might have imposed a different sentence. The decision also reinforces that ministerial second reading speeches cannot supplant the statutory text when liberty is at stake.
Key passages with plain-English translation
Paragraph [1]-[2] (introduction): "By s 669A(1) of the Criminal Code (Q) the Attorney-General of Queensland may appeal ... The court hearing such an appeal 'may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.' 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."
Plain English: The whole case turns on one question: can the appeal court change a sentence just because it thinks it should have been higher, or must it first find that the trial judge did something wrong?
Paragraph [20]: "As a matter of established principle, a general statutory provision should not ordinarily be construed as conferring or extending such a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language."
Plain English: Parliament must use very clear words if it wants to let prosecutors keep appealing sentences. Otherwise the court assumes the law protects people from being punished twice.
Paragraph [57]: "In construing a statute which provides for a Crown appeal against sentence, common law principles of interpretation would not, unless clear language required it, prefer a construction which provides for an increase of the sentence without the need to show error by the primary judge. That is a specific application of the principle of legality."
Plain English: The default rule is that a Crown appeal needs to show the original judge erred. Only unmistakable statutory language can change that rule.
Paragraph [117]: "In our opinion, the appellate jurisdiction conferred upon the Court of Appeal by s 669A(1) requires that error on the part of the sentencing judge be demonstrated before the Court's 'unfettered discretion' to vary the sentence is enlivened."
Plain English: This is the holding. Error first, then the wide discretion to fix the sentence. The two steps cannot be collapsed into one.
Paragraph [84] (discussion of Melano): "Unless the sentencing judge has erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be 'proper'."
Plain English: If the trial judge's sentence is within the available range and not based on a legal mistake, the appeal court should leave it alone.
What fact patterns trigger this precedent
Lacey is triggered whenever the Attorney-General of Queensland institutes an appeal under s 669A(1) against a sentence imposed for an indictable offence (whether after trial or summary hearing). The precedent applies to any contention that the sentence was inadequate, manifestly inadequate, or failed to reflect particular sentencing considerations.
The critical factual precondition is that the Court of Appeal must be asked to increase a sentence. In such cases the Crown must identify either an identifiable error of principle, a mistake of fact, failure to take into account a material consideration, or manifest inadequacy such that error can be inferred. Mere disagreement with the weight given to mitigating factors or with the headline figure will not suffice.
The principle extends to any statutory provision using similar language that confers a Crown right of appeal against sentence while using the word "appeal". It does not apply to prosecution appeals against acquittal or to convicted persons' appeals, which have always required error. It is engaged where the Crown changes its position on sentence between the trial court and the appeal court; the Court noted that such a change should not be permitted to give the prosecution a "second bite at the cherry".
The precedent is engaged even where the Court of Appeal considers the original sentence "inadequate" in a conclusory way. An express finding tied to House error or manifest inadequacy is required. Where no such finding has been made and the appellate court has simply substituted its own view, the proper order is to dismiss the Crown appeal rather than remit for reconsideration unless remitter is sought.
How later courts have treated it
Lacey has been treated as authoritative on the construction of s 669A(1). In R v Cowan; Ex parte Attorney-General (Qld) [2012] QCA 116 the Court of Appeal expressly applied Lacey, stating that it was necessary to identify error before the discretion to vary arose. Subsequent decisions have routinely cited Lacey for the proposition that Crown appeals are exceptional and require demonstration of House error or manifest inadequacy: see R v McGrath [2013] QCA 361 and R v HBM [2014] QCA 5.
Intermediate appellate courts in other States have noted Lacey with approval when construing analogous provisions. In Director of Public Prosecutions (Vic) v Bright (2013) 39 VR 559 the Victorian Court of Appeal referred to Lacey as reinforcing the principle that Crown appeals should be rare and brought only to correct error or establish principle. Western Australian and South Australian courts have similarly cited it when emphasising the need for clear statutory language before a de novo resentencing power will be inferred.
The High Court itself has cited Lacey in Green v The Queen (2011) 244 CLR 462 at [1] and in Bugmy v The Queen (2013) 249 CLR 571 when reiterating the exceptional character of Crown appeals. No court has cast doubt on the core holding. Later decisions have, however, clarified that once error is demonstrated the appellate court's discretion remains genuinely wide and is not confined to the "lowest end" of the available range.
The decision has been applied in cases where the Crown sought to rely on new evidence or changed its sentencing submission. Courts have refused to increase sentences where the only complaint is that the judge gave "too much weight" to mitigation without identifying how that amounted to legal error.
Still-open questions
Several questions remain unresolved after Lacey. First, the precise content of "error" in the Crown appeal context is not exhaustively defined. While House v The King error is the baseline, the Court left open whether a residual category of "manifest inadequacy" that does not disclose an identifiable error can, without more, enliven the discretion. The majority appeared to accept that manifest inadequacy can itself bespeak error, but the boundaries were not mapped.
Second, the interaction between s 669A(1) and the Penalties and Sentences Act 1992 (Q) remains incompletely explored. In particular, whether statutory sentencing principles that post-date the 1975 amendment can themselves constitute "error" for the purpose of triggering the appellate discretion was not decided.
Third, the Court did not finally determine the constitutional validity of s 669A(1) on the basis that, as construed by the Court of Appeal, it required the Court to perform a non-judicial function. That argument was left for another day. A future case in which the Attorney-General frankly asks the Court to re-sentence without any pretence of error may require the Court to confront the Kable doctrine.
Fourth, the extent to which an appellate court may take into account post-sentencing events (for example, further offending or rehabilitation) when re-sentencing after finding error remains unclear. Section 671B(2) prohibits increasing sentence on the basis of evidence not before the trial judge, but the precise scope of that prohibition was not examined.
Finally, the practical operation of the "unfettered discretion" once error is shown has received little appellate attention. Whether that discretion is truly at large or is constrained by the need to avoid double jeopardy in the re-sentencing exercise itself is a live issue that Lacey acknowledges but does not fully resolve. Lower courts continue to wrestle with how much weight to give to the original sentence even after error is found.
Most people don't realise that the High Court's insistence on error before variation effectively restores the pre-1975 understanding of s 669A despite the insertion of the word "unfettered". The decision demonstrates that even apparently clear amending words cannot overcome deeply entrenched common-law presumptions without unequivocal parliamentary language. That insight justifies close attention to statutory history and extrinsic materials in every Crown appeal.
Catchwords
Lacey v Attorney-General of Queensland
Judgment (127 paragraphs)
[1]
The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.
In this context, reference should be made to s 14A(1) of the Acts Interpretation Act 1954 (Q), which requires a purposive construction of Queensland statutes and is in the following terms:
[2]
(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation."
[3]
The term "purpose" is defined to include "policy objective"[120]. Section 14A(1) was introduced into the Acts Interpretation Act in 1991 but may be taken, as required by s 2 of the Act, to apply to all Acts, including those which predated its enactment[121]. Neither party placed any reliance upon s 14A, which was surprising given that an area of contest in the appeal was about statutory purpose.
[4]
Section 14A requires preference to be given to that interpretation which will best achieve the purpose of the Act. It differs from s 15AA of the Acts Interpretation Act 1901 (Cth), which requires preference to be given to a construction that would "promote the purpose or object underlying the Act" over "a construction that would not promote that purpose or object." Section 15AA contemplates a limited choice between two constructions[122]. Assuming that s 14A is not intended to displace common law rules outside its sphere of operation, the interpretations from which the selection which it mandates is to be made must be those which comply with the requirements of those rules, none of which is antagonistic to purposive construction[123].
[5]
Section 669A appears in Ch 67 of the Criminal Code, entitled "Appeal - pardon". The chapter provides, inter alia, for appeals by convicted persons from their convictions and sentences[124] and for referral to and reservation of points of law for the Court of Appeal[125].
In construing s 669A(1) it is necessary to approach it as a provision which confers jurisdiction upon the Court of Appeal together with powers to be used by that Court in the exercise of its jurisdiction. The distinction between jurisdiction and power has been made repeatedly by this Court[126]. It is a distinction which was not sharply drawn by the majority in the Court of Appeal[127]. The power given to the Court may inform the characterisation of its jurisdiction but does not necessarily define its content.
The jurisdiction conferred on the Court of Appeal under s 669A(1) is authority to determine an appeal to the Court by the Attorney-General against any sentence imposed by the court of trial or a court of summary jurisdiction dealing summarily with an indictable offence. The scope and limits of the Court's jurisdiction are to be derived from the word "appeal". Its powers are to be found in the final words of s 669A(1), which refer to its "unfettered discretion" to "vary the sentence and impose such sentence as to the Court seems proper."
The word "appeal" must be given content. In answer to a question from the Court during oral argument, the Solicitor-General of Queensland acknowledged that the construction of s 669A(1) for which he was contending was:
[6]
"By application by the Attorney the Court of Appeal may, in any case, resentence the prisoner."
[7]
The jurisdiction is thus collapsed into the power. It is true that jurisdiction can be conferred in the same breath and by the same words as power, although its subject matter must be discernible from some source[128]. However, for the reasons given earlier, the construction propounded by the Attorney-General is not to be preferred unless required by the clear words of s 669A(1) and/or by the requirement for purposive construction set out in s 14A of the Acts Interpretation Act. It is a construction which gives no jurisdictional content to the term "appeal". It confers upon the Court a power unconstrained by any principle beyond those which constrained the sentencing judge.
[8]
In CDJ v VAJ[129], McHugh, Gummow and Callinan JJ observed, in relation to the appellate jurisdiction of the Full Court of the Family Court, that it was highly unlikely that the Parliament intended that the provision conferring that jurisdiction[130]:
[9]
"should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction."
[10]
That observation was not based upon the particular language of the statute under consideration. It reflected a well established distinction between the two kinds of jurisdiction which informed the construction of the statute in that case.
[11]
The reasoning of the majority in the Court of Appeal did not disclose any more principled basis for interference with the sentence imposed by the trial judge than would derive from the construction propounded by the Attorney‑General. Neither overt nor implied error of principle, nor manifest inadequacy or excessiveness, was necessary to enliven the Court's powers on the approach taken by the majority. The majority said that in exercising its discretion the Court "must have regard to the sentence imposed below"[131], a formulation which conveyed no comprehensible restraint upon its "unfettered discretion" to vary that sentence.
As noted above, the majority accepted that the right of appeal "should be exercised sparingly by the Attorney-General and not merely for the purpose of having a 'second bite at the cherry'."[132] The constraint applied by the majority to give content to that figure of speech was that the Attorney-General should not invoke the jurisdiction to advance a position inconsistent with that taken by the Crown before the primary judge. The Attorney-General did just that on this occasion. The majority's response was to limit the increase in the sentence imposed to that amount which would reflect the level sought by the Crown Prosecutor at first instance. The result could hardly be seen as providing any guidance to judges at first instance in future cases. Otherwise the only limiting criterion for the exercise of the jurisdiction was the indeterminate standard of substantial disagreement with the primary judge, a standard conclusional in character and attainable by a multiplicity of pathways, including both the principled and the visceral.
The question raised in this case is: what purpose is served by the construction of s 669A(1) adopted by the majority and advanced on behalf of the Attorney-General on the hearing of this appeal? The majority described the right of appeal conferred on the Attorney-General by s 669A(1) as "an important tool in the maintenance of equality before the law of all convicted persons."[133] Its rationale was "so radically, and obviously, different from that which informs the conferral of an entitlement on a convicted person to seek leave to appeal against sentence, that the attempt to urge strict scrutiny of s 669A(1) in the name of the principle of legality is distinctly unpersuasive."[134] The majority appear to have been using the term "equality before the law" in the sense of consistency in sentencing. Yet, as the plurality pointed out in Hili v The Queen[135], consistency in sentencing refers to "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence."[136] Consistency in that sense is maintained by the decisions of intermediate courts of appeal.
[12]
"[w]hat may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised, either generally or in particular kinds of case."
[13]
In the same case, Gleeson CJ made the observation, approved by the plurality in Hili v The Queen[139], that[140]:
[14]
"The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency."
[15]
Absent clear language, it should not be an inferred purpose of s 669A(1) to authorise the Court of Appeal, in the name of "equality before the law", simply to plant a wilderness of single instances with more instances of its own choosing.
[16]
Ascertainment of the statutory purpose is to be based on the words of s 669A(1) and, in particular, the word "appeal", which encompasses the jurisdiction conferred by the subsection. An appeal is a creature of statute and, subject to constitutional limitations, the precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context. The purpose of s 669A(1) is to create an appellate jurisdiction exercisable upon the application of the Attorney-General and coupled with a wide remedial power. The question is what kind of jurisdiction does it create?
Appeals being creatures of statute, no taxonomy is likely to be exhaustive[141]. Subject to that caveat, relevant classes of appeal for present purposes are:
[17]
Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given[142]. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance[143].
[18]
Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error[144].
[19]
Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error[145]. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence[146]. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance[147].
[20]
Where the court is confined to the materials before the judge at first instance, that is ordinarily indicative of an appeal by way of rehearing, which would require demonstration of some error on the part of the primary judge before the powers of the court to set aside the primary judge's decision were enlivened.
Section 671B of the Criminal Code confers "supplemental powers" on the Court of Appeal generally, including the power to receive evidence[148]. But those powers are subject to the important limitation in s 671B(2) that "in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial."
The appellate jurisdiction conferred by s 669A(1) must be confined, at least when the Attorney-General is asserting that the sentence should be increased, to the evidence before the primary judge, including evidence given at trial, what the jury necessarily found and evidence, if any, given at the sentencing hearing. Having regard to the categories of appellate jurisdiction and the confinement of the Court of Appeal to evidence before the primary judge, it is open to construe s 669A(1) as creating an appeal by way of rehearing and conferring appellate jurisdiction to determine only whether there has been some error on the part of the primary judge. Such error having been detected, the Court has a wide power, indicated by the words "unfettered discretion", to vary that sentence.
The Solicitor-General of Queensland pointed to the background to the enactment of the new s 669A(1) in 1975 as a response to the 1973 decision of the Court of Criminal Appeal in Liekefett. The record of the Second Reading Speech shows that the Minister for Justice intended, by the repeal and re-enactment of s 669A(1), to "make it clear that the Court of Criminal Appeal has an unfettered discretion to determine the proper sentence to impose when the Attorney-General has appealed against the inadequacy of the sentence."[149] The Minister's words, however, cannot be substituted for the text of the law, particularly where the Minister's intention, not expressed in the law, affects the liberty of the subject[150]. In any event the Minister's Speech left open the question of the content to be given to the word "appeal" and thereby to the jurisdiction conferred upon the Court. Neither expressly nor by necessary implication do the words of s 669A(1) define the jurisdiction simply by reference to the power to vary sentences if the Attorney-General chooses to appeal. Such a construction would require clear language to overcome the intention which the common law imputes to the legislature that it does not require the Court to consider an appeal on the basis that it might be persuaded to disagree with a sentence which could not be challenged as manifestly inadequate or excessive or otherwise affected by error[151].
[21]
"Even after making due allowance for the appellant's limited criminal history and youth, it cannot be said that the primary judge's selection of 12 years as the starting point for his sentence was excessive, let alone manifestly so. A substantially higher head sentence would have been within the proper exercise of the sentencing discretion and was in fact required if the purposes of denunciation and general deterrence were to be adequately served. The sentence of 10 years, after allowing for time spent which was not able to be declared time served, was, in consequence, far from excessive."
[22]
The appellant submitted to this Court that if he were to succeed the order of the Court of Appeal should be set aside and in its place an order made dismissing the appeal to that Court. In the alternative, an order was sought that the notice of appeal be dismissed as incompetent. Given that the Attorney‑General's notice of appeal raised the alternative ground that the sentence imposed was "manifestly inadequate", the appeal could not be dismissed as incompetent on the basis that its grounds failed to invoke the jurisdiction conferred by s 669A(1) properly construed.
The Attorney-General did not make any submission against the proposed order that the appeal to the Court of Appeal be dismissed. The remarks made by the majority in the Court of Appeal in dismissing the appellant's application for leave to appeal against his sentence did not assert that the majority had discerned an error of principle in connection with the inadequacy of the sentence imposed. No finding of such an error was made in relation to that inadequacy in the majority's reasons for allowing the Attorney-General's appeal. Had such an error been found, that would have been a basis for allowing the Attorney-General's appeal even on the construction of s 669A(1) adopted by the majority. In the absence of any finding of error of principle on the part of the primary judge and the absence of any argument that the matter should be remitted, the appropriate order is:
[23]
Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 11 September 2009 and, in lieu thereof, order that the appeal to that Court be dismissed.
[24]
Section 669A(1) of the Criminal Code (Q) provides that, when the Court of Appeal is hearing an appeal by the Attorney-General against sentence, it "may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper." What does this mean?
The appellant's case in a nutshell, accepted by the President of the Court of Appeal (dissenting), was that the Court of Appeal must proceed in two stages. The first stage is to decide whether it is open to the Court to consider varying the sentence at all, and that depends on whether the sentencing judge fell into one of the errors described in House v The King[154]. Below, this will be called "error in the relevant sense". If, but only if, error in the relevant sense is found, the second stage arises. It turns on the inquiry: "To what extent should the sentence be varied?" The appellant submitted, then, that at the first stage the discretion conferred by s 669A(1) is fettered by the need to find error in the relevant sense, while it is only at the second stage that the discretion is "unfettered".
The respondent's case in a nutshell was that s 669A(1) meant that, on an application by the Attorney-General to the Court of Appeal, the Court might in any case re-sentence the prisoner. The respondent accepted that there were two stages, but submitted that at each stage the Court of Appeal's discretion was unfettered, and that it was possible to move to the second stage without finding error in the relevant sense at the first stage. At the first stage it might decide not to embark on the second stage - for example, because it agreed with the sentence, or because it thought that any disparity between what the sentencing judge had done and what it would favour was too slight to merit embarking on the second stage, or because the conduct of the prosecution before the sentencing judge did not make it just to embark on the second stage. At the second stage it could select any sentence it chose without any fetter.
The parties, then, were agreed in relation to the second stage, but not the first. To avoid doubt, it should be indicated that there was a silent and correct consensus between the parties that at the second stage the discretion, though unfettered, remained a judicial discretion, not to be arbitrarily or capriciously exercised.
[25]
In 1939 the precursor to the present form of s 669A was introduced into the Criminal Code by the Criminal Code Amendment Act 1939 (Q). The Premier of Queensland, the Hon W Forgan Smith, said in his Second Reading Speech that the provision, granting a right of Crown appeal against sentence, was "identical with that enacted by New South Wales in 1924."[155] That which had been enacted for Crown appeals against sentence in New South Wales in 1924 was s 5D of the Criminal Appeal Act 1912 (NSW). Both s 5D and s 669A gave the appellate court a "discretion". That word was not qualified by the adjective "unfettered".
Eleven years before the Premier spoke, it had been said by Knox CJ and Powers J in Whittaker v The King[156] that a possible construction of s 5D was that it conferred "unlimited judicial discretion". Gavan Duffy and Starke JJ said[157]:
[26]
"There is nothing in the words of the section to limit the exercise of discretion … The Court of Criminal Appeal, in imposing the sentence complained of, did not proceed in opposition to any principle of law but in accordance with its own considered view of the facts."
[27]
Isaacs J, on the other hand, thought[158] that the Court of Criminal Appeal should not interfere unless the sentencing judge had erred in some of the ways later described in House v The King. Higgins J declined to decide the question, which had not been argued, but thought it right to assume that the sentence should not be interfered with "unless there has been a mistake of principle"[159].
[28]
In Williams v The King [No 2][160] Evatt and McTiernan JJ treated Knox CJ and Powers J in Whittaker v The King as having stated not just a possible view, but an opinion that that view was right, and considered that Gavan Duffy and Starke JJ "adopted much the same interpretation, namely, that the section confers an unfettered discretion upon the Court of Criminal Appeal to alter the sentence imposed by a trial Judge."
It is true that in House v The King Dixon, Evatt and McTiernan JJ stated that appeals against exercises of discretion should only be allowed if an error was made[161]. But none of the judicial opinions cited for this proposition came from cases involving Crown appeals or from cases on s 5D, except for the opinion of Isaacs J in Whittaker v The King. And House v The King itself was not a case on s 5D.
In Cranssen v The King Dixon, Evatt and McTiernan JJ adopted the same test as they had in House v The King - again in a case which was not a Crown appeal and did not involve s 5D[162]. Starke J[163], on the other hand, repeated what he had said in House v The King, namely that the sentence imposed upon an accused person for an offence is a matter[164]:
[29]
"peculiarly within the province of the judge who hears the charge: he has a discretion to exercise which is very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion."
[30]
At the time when the Premier of Queensland spoke in 1939, then, there was material to suggest that the conventional understanding of the majority view in this Court on s 5D, as distinct from other provisions relating to appeals from discretionary decisions, was that no error of principle need be established. The Premier was not to know that four decades after he spoke, Barwick CJ would say in Griffiths v The Queen, which was a s 5D case, that while what Knox CJ and Powers J said in Whittaker v The King "could support" the view that no error of principle need be established, what Gavan Duffy and Starke JJ said in Whittaker v The King was "ambiguous"[165]. Nor was the Premier to know that in Griffiths v The Queen Jacobs J[166] would say that it was wrong to interpret what was said in Whittaker v The King as being different from what was said in House v The King - a proposition which, with respect, it is difficult to accept.
The construction of s 5D by four judges in Whittaker v The King, as then conventionally understood, was adopted in Queensland in R v Beevers[167] and continued until 1973, when the Court of Criminal Appeal decided in R v Liekefett; Ex parte Attorney-General[168] to follow instead the approach of Isaacs J. Two years later s 669A was replaced by the Criminal Code and the Justices Act Amendment Act 1975 (Q). The key amendment was to substitute for "discretion" the words "unfettered discretion".
With respect, the majority of the Court of Appeal in these proceedings was right to construe s 669A(1) as not requiring a demonstration of error in the relevant sense before a sentence could be varied. That is so for the following reasons.
[31]
First, the majority construction gives proper weight to the adjective "unfettered". It is, of course, open to those who think it is right to do so to criticise s 669A if it means what the Court of Appeal majority said it means in these proceedings. Many may think that, so construed, s 669A may lead to unsatisfactory results, such as a multiplication of unhelpful appellate decisions turning on different perceptions by appellate judges of justice in particular cases. It may be open to many other criticisms. But the legislature is entitled to enact a statute which is open to criticism. It is not for a court to reconstruct the statute after its own desires[169].
It may be assumed that, without clear words, legislation should not be construed so as to derogate from existing rights or interests of various kinds. Some of the rights or interests mentioned in argument are more important than others. In this case it was said that, without clear words, s 669A(1) should not be construed to affect liberty, or to permit that form of "double jeopardy" which is involved in Crown appeals, or to permit sentences to be increased even if there is no error in the relevant sense, or to place Crown appeals in a different position from that of appeals by the accused, or to permit the Crown to bring sentencing appeals merely because it is dissatisfied with the particular sentence selected by the sentencing judge, or even, as happened here, to permit the Crown to adopt the highly unsatisfactory course of urging before the Court of Appeal a higher sentence than that which it had urged on the sentencing judge. But, to take one of these propositions by way of example, it is incontestable that s 669A, when compared to s 668E, does place the accused in a different position from that occupied by the Crown in relation to the facility of appeal, and a worse one. It is incontestable because of the clarity of the language. Contrary to the views of others, the words "unfettered discretion" are equally clear.
To construe the adjective "unfettered" as applying only to the process by which an appellate court decides the level to which the sentence should be varied, but not to the process by which it decides whether it should be varied at all, is both otiose and artificial.
It is otiose in this sense: if it were necessary to demonstrate error in the exercise of the sentencing judge's discretion before a sentence could be reviewed, the only unfettered discretion was the "second stage" discretion about what higher sentence should be imposed. But that discretion would have been "unfettered" (within the limits of a judicial discretion), without the need for inserting that word. Even McMurdo P, who dissented from the construction given to s 669A by the majority in the Court of Appeal, said that the word "unfettered" adds "nothing more than emphasis to s 669A(1)"[170]. But since it was entirely unnecessary to give emphasis, the insertion of the word "unfettered" would have no point. The Court of Appeal majority was correct to say that, on the appellant's argument, the 1975 amendment to s 669A(1) "achieved precisely nothing"[171]. That is a consideration pointing strongly against the validity of the appellant's argument in this Court.
[32]
"the purposive approach to statutory interpretation in this matter is of no value as such an approach would do nothing other than lead to greater confusion. In such circumstances, reliance must be placed upon the words of the legislation. To change long established legal principle requires clear and unambiguous statutory wording. Such wording is absent in s 669A(1). In that regard it would not have been difficult for the legislature to have amended the section in such a way as to avoid all ambiguity as to its intention."
[33]
The first two sentences are correct. So, it may be assumed, in the context of the present proceedings, is the third sentence. With respect, the fourth is not correct. And the appellant did not suggest a clearer way by which s 669A could have been amended in 1975.
[34]
A second consideration of some weight supporting the construction adopted by the Court of Appeal majority is that McHugh J in York v The Queen[175], after giving the matter close consideration, favoured it.
[35]
A third consideration arises out of what the Minister for Justice said in 1975. Excessive recourse to second reading speeches is one of the blights of modern litigation. Modern legislation permits it, or is often assumed to permit it, to a much greater extent than the common law rules of statutory construction did. Experience is tending to raise grave doubts about the good sense of that legislation. It may be accepted that what Ministers say about what they intended the enactment to provide is no substitute for an examination of what the enactment actually provides, only an aid to it. It may be accepted that that proposition is particularly salutary when the enactment is said to derogate from fundamental rights or damage fundamental interests. But the fact remains that the courts can investigate what Ministers say. There are rare occasions when that investigation has value. This is one of the rare occasions.
In what the Minister for Justice said on 23 April 1975 in his Second Reading Speech[176], there is support for the clear construction to be given to the legislative words "unfettered discretion" which was adopted by the Court of Appeal majority. There is nothing narrow or incomplete in what he said. The court decision to which the Minister referred, R v Liekefett; Ex parte Attorney‑General, was a decision holding that error in the relevant sense had to be established before the appellate court could vary a sentence under s 669A(1). It was a decision which related to the "first stage", not the "second stage". It is that decision which the Minister saw the amendment as reversing, and the insertion of "unfettered" was a sufficiently clear method of reversing it.
The appellant dealt with the Minister's Second Reading Speech thus:
[36]
"when the Minister for Justice told Parliament in 1975 that the amendment only makes clear what was always intended, it would seem that what was originally intended [in 1939] was that the Attorney-General should have a similar right to appeal against decisions to that of a defendant. Of course, the legislation did not give effect to that intention in 1939 as the Attorney‑General was given the right of appeal against a sentence whereas an individual had to seek the leave of the Court to appeal against sentence."
[37]
Whatever was originally intended in 1939, with respect, it is plain that the Minister for Justice in 1975 was not talking about rendering the Attorney‑General's facility of appealing equivalent to that of the defendant; rather he was talking about making it clear that a Crown appeal did not depend on first establishing error in the relevant sense.
[38]
That emerges even more forcefully from what the Minister for Justice said five days before his Second Reading Speech, on 18 April 1975, when the Bill was initiated in committee.
Before one examines what he said on that particular occasion, it is necessary to be sure that it is legitimate to do so.
A provision in an Act which the President of the Court of Appeal and six judges in this Court construe one way, and four other judges in the Court of Appeal and McHugh J construe another way, must be in some sense "ambiguous" or "obscure", even though the proponents of each side of the argument are adamant that their construction is the only possible one. Section 14B(1)(a) of the Acts Interpretation Act 1954 (Q) thus permits the Court to give consideration to "extrinsic material". Section 14B(3) defines "extrinsic material" as "relevant material not forming part of the Act concerned". Section 14B(3) lists, non-exhaustively, various examples. Section 14B(3)(f) permits recourse to the Second Reading Speech of the Minister for Justice. Section 14B(3)(g) would appear to permit recourse to the Minister's speech when the Bill was initiated in committee, since it would appear to fall within the words "material in the Votes and Proceedings of the Legislative Assembly or in any official record of debates in the Legislative Assembly". In any event, what the Minister said is "relevant" within the meaning of the opening words of s 14B(3).
The Minister said[177]:
[39]
"The Attorney-General has a right to appeal to the Court of Criminal Appeal where he considers that the sentence on conviction on indictment was too light. For approximately 30 years, until a court decision in 1973, the Court of Criminal Appeal acted on the principle that the court had an unfettered discretion and was not bound to inquire whether the trial judge was manifestly wrong in his sentence. The court simply had to determine what was the proper sentence in the circumstances. The effect of the decision in 1973 was that the Court of Criminal Appeal does not have an unfettered discretion and the Attorney‑General now has to prove that the sentence was manifestly inadequate. It is proposed to make it clear that the Court of Criminal Appeal does have an unfettered discretion and has therefore to determine what was the proper sentence in the circumstances." (emphasis added)
[40]
By "too light" the Minister plainly meant a sentence which the Attorney‑General disagreed with, whether he thought it "manifestly wrong" or not, or "manifestly inadequate" or not. By "the proper sentence" the Minister plainly meant the sentence which the Court of Criminal Appeal thought proper because it was changed so as not to be "too light" in its view, without any need to consider whether the sentencing judge's sentence was afflicted by an error of principle. The Minister's use of the expressions "manifestly wrong" and "manifestly inadequate" correspond with the words "manifestly wrong", used by Lord Reading CJ in one of the authorities relied on in House v The King[178]. The Minister's expressions also correspond with the residual category of error in House v The King described in the last two sentences quoted above[179]. The key "fetters" which the Minister had in mind were thus those described in House v The King. They are "fetters" which apply, if at all, at the "first stage". The Minister's language applies to the first stage. It is not limited to the "second stage".
[41]
The fourth consideration concerns the word "appeal". The appellant submitted that the selection of the word "appeal" in s 669A(1) indicated that the process was one involving the correction of error in the relevant sense. The submission assumes that all procedures described in legislation as "appeals" must involve the correction of error in the relevant sense. That assumption is unsound. The construction of "unfettered discretion" adopted by the Court of Appeal majority is not antithetical to the word "appeal" in s 669A(1). The legislature is at liberty to fashion what particular types of appeal it wishes to create. The word "appeal" covers a variety of processes, and the list of them is not closed. The potential reach of the expression in any particular enactment is confined only by any limit to the fertility of Parliament. Section 669A(1) empowers the Attorney‑General to apply to the Court of Appeal in order to complain about a sentence. It confers on the Court of Appeal a jurisdiction to consider the appeal and a duty to do so. In carrying out its duty to consider that kind of appeal against sentence, the Court of Appeal has at the first stage a duty to consider whether the sentence imposed was such as to merit variation. If it decides that it did merit variation, at the second stage its duty is to decide what variation should be made. Nothing in s 669A(1) requires a search for error at the first stage. In carrying out the duty arising at the first stage, however, the Court of Appeal would be entitled to decline to enter upon the sentencing task involved at the second stage if, for example, it thought that any insufficiency in the sentencing judge's sentence was only minor. It would be so entitled partly to discourage frivolous Crown appeals, partly because re-sentencing in those circumstances would be a waste of its time, and partly because it is inherent in the nature of sentencing that different minds will arrive at different sentences on identical facts[180]. At that first stage the Court of Appeal has a discretion which is not fettered to decline to interfere even though it disagrees with the sentence. At the second stage, if it decides to embark on it, the Court of Appeal has a discretion which is not fettered to determine what the increase should be. The statutory language which creates this structure may be unusual, it may be wanting in sense, but it was open to the legislature to use it, and it has done so.
[42]
The appellant submitted in writing - the Court did not require oral argument in view of the impending success of the appellant on the construction issue - that if the construction given to s 669A by the majority of the Court of Appeal were correct, the provision was constitutionally invalid by reason of the principles stated in the line of cases commencing with Kable v Director of Public Prosecutions (NSW)[181]. The submission is unsound, but there is no point in lengthening this dissenting judgment by giving reasons for that opinion.
[43]
Until 1991, the appeal lay to the Court of Criminal Appeal, which was established by ss 3 and 5 of the Criminal Code Amendment Act 1913 (Q), inserting s 668A into the Criminal Code (Q). The appeal to the Court was replaced with an appeal to the Court of Appeal by s 111 of the Supreme Court of Queensland Act 1991 (Q) read with Sched 2 to the Act. ↑
[44]
R v Lacey; Ex parte Attorney-General (Qld) (2009) 197 A Crim R 399 at 416 [147]. ↑
[45]
de Jersey CJ, Keane, Muir and Chesterman JJA; McMurdo P dissenting. ↑
[46]
DJL v Central Authority (2000) 201 CLR 226 at 245-246 [40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 17, citing CDJ v VAJ (1998) 197 CLR 172 at 196-197 [95] per McHugh, Gummow and Callinan JJ; [1998] HCA 67. ↑
[47]
Pursuant to s 75 of the Supreme Court of Judicature Act 1873 (UK) (36 & 37 Vict c 66). ↑
[48]
Great Britain, Council of Judges of the Supreme Court, Return of Report of the Judges in 1892 to the Lord Chancellor, Recommending the Constitution of a Court of Appeal and Revision of Sentences in Criminal Cases, (1894) at 7. ↑
[49]
Great Britain, Council of Judges of the Supreme Court, Return of Report of the Judges in 1892 to the Lord Chancellor, Recommending the Constitution of a Court of Appeal and Revision of Sentences in Criminal Cases, (1894) at 7. ↑
[50]
Great Britain, Council of Judges of the Supreme Court, Return of Report of the Judges in 1892 to the Lord Chancellor, Recommending the Constitution of a Court of Appeal and Revision of Sentences in Criminal Cases, (1894) at 7. ↑
[51]
Great Britain, Council of Judges of the Supreme Court, Return of Report of the Judges in 1892 to the Lord Chancellor, Recommending the Constitution of a Court of Appeal and Revision of Sentences in Criminal Cases, (1894) at 7-8. ↑
[52]
Great Britain, Council of Judges of the Supreme Court, Return of Report of the Judges in 1892 to the Lord Chancellor, Recommending the Constitution of a Court of Appeal and Revision of Sentences in Criminal Cases, (1894) at 8. ↑
[53]
Pattenden, English Criminal Appeals 1844-1994, (1996) at 292-297. ↑
[54]
Criminal Code RSC 1906, c 146, s 1013(2), as enacted by SC 1923, c 41, s 9. A general right to seek leave to revise a sentence had been introduced in 1921: Criminal Code RSC 1906, c 146, s 1055A, as enacted by SC 1921, c 25, s 22. ↑
[55]
Criminal Code Amendment Act 1911 (WA), s 10; Criminal Appeal Act 1912 (NSW), s 5(1)(c); Criminal Code Amendment Act 1913 (Q), ss 3 and 8; Criminal Appeal Act 1914 (Vic), s 3(c); Criminal Appeals Act 1924 (SA), s 5(d); Criminal Code (Tas), s 401(1)(iii), as enacted by the Criminal Code Act 1924 (Tas). ↑
[56]
Crimes (Amendment) Act 1924 (NSW), s 33; Criminal Code (Tas), s 401(2)(iii), as enacted by the Criminal Code Act 1924 (Tas). ↑
[57]
Criminal Code Amendment Act 1939 (Q), s 4; Criminal Appeals Act 1970 (Vic), s 2; Criminal Code Amendment Act 1975 (WA), s 3(b); Criminal Law Consolidation Act Amendment Act 1980 (SA), s 9; Federal Court of Australia Act 1976 (Cth), ss 24(1)(b) and 28(5) (as enacted). In Western Australia, the Crown had, from 1954, the right to appeal against any sentence "which in the circumstances of the case cannot lawfully be passed on the convicted person for the offence of which he stands convicted": Criminal Code (WA), s 688(2)(d) as inserted by Criminal Code Amendment Act 1954 (WA), s 8. ↑
[58]
(1928) 41 CLR 230 at 235 per Knox CJ and Powers J; see also at 253 per Gavan Duffy and Starke JJ. ↑
[59]
(1928) 41 CLR 230 at 236 (emphasis in original). ↑
[60]
(1936) 55 CLR 509 at 519 per Dixon, Evatt and McTiernan JJ. See also Harris v The Queen (1954) 90 CLR 652; [1954] HCA 51, which applied Cranssen. ↑
[61]
Griffiths v The Queen (1977) 137 CLR 293 at 308 per Barwick CJ, 326-327 per Jacobs J. ↑
[62]
(1908) 7 CLR 277 at 304; [1908] HCA 63, a passage taken from the judgment of Marshall CJ in United States v Fisher 6 US 358 at 389-390 (1805). ↑
[63]
Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1990] HCA 24; Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ; [1994] HCA 15; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [20] per Gleeson CJ; [2004] HCA 40. See also Wall v The King; Ex parte King Won [No 1] (1927) 39 CLR 245; [1927] HCA 4; Smith v The Queen (1994) 181 CLR 338; [1994] HCA 60; and see generally Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006) at 187-188 [5.28]. ↑
[64]
(1986) 161 CLR 119 at 128-129, a restrictive approach also applied in Bond v The Queen (2000) 201 CLR 213; [2000] HCA 13. ↑
[65]
(1999) 199 CLR 1 at 26 [50] per Gaudron, McHugh, Gummow and Callinan JJ. ↑
[66]
(1989) 168 CLR 227; [1989] HCA 58, which was concerned with s 352(2) of the Criminal Law Consolidation Act 1935 (SA). ↑
[67]
(1989) 168 CLR 227 at 233, cited in Byrnes v The Queen (1999) 199 CLR 1 at 26‑27 [53] per Gaudron, McHugh, Gummow and Callinan JJ. See also Bond v The Queen (2000) 201 CLR 213 at 223 [29]. ↑
[68]
(1994) 181 CLR 295 at 305 per Brennan, Deane, Dawson and Gaudron JJ. ↑
[69]
(1999) 199 CLR 1 at 27 [54] per Gaudron, McHugh, Gummow and Callinan JJ. ↑
[70]
Malvaso v The Queen (1989) 168 CLR 227 at 234 per Deane and McHugh JJ. ↑
[71]
Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1939 at 1716. ↑
[72]
Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1939 at 1717. ↑
[73]
R v Buckmaster [1917] St R Qd 30 at 31-32; R v McIntosh [1923] St R Qd 278 at 279-280; R v McCowan [1931] St R Qd 149 at 151-152 per Blair CJ and Webb J; R v Keith [1934] St R Qd 155 at 169 per Blair CJ, 180 per Webb J, 188 per Henchman J; R v Parmenter [1936] QWN 25 at 30 per Blair CJ. ↑
[74]
[1942] St R Qd 230 at 232 per Webb CJ; see also at 233 per Macrossan SPJ, 236 per Mansfield J. ↑
[75]
[1942] St R Qd 230 at 231, citing R v Withers (1925) 25 SR (NSW) 382 and R v McKeown [1940] St R Qd 202. ↑
[76]
R v Withers (1925) 25 SR (NSW) 382; R v King (1925) 25 SR (NSW) 218; R v Geddes (1936) 36 SR (NSW) 554; R v Cuthbert (1967) 86 WN (Pt 1) NSW 272; R v Macaulay [1969] 2 NSWR 700. ↑
[77]
Criminal Code and the Justices Act Amendment Act 1975 (Q), s 34. ↑
[78]
Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1975 at 993. ↑
[79]
(2005) 225 CLR 466 at 468-469 [4] per Gleeson CJ. ↑
[80]
(1990) 169 CLR 245 at 268-270 per Dawson, Toohey and McHugh JJ; [1990] HCA 9. ↑
[81]
(1989) 166 CLR 417 at 451-452 per Brennan J; [1989] HCA 5. ↑
[82]
(2009) 197 A Crim R 399 at 405 [122], 408 [128]. ↑
[83]
(2009) 197 A Crim R 399 at 411 [132], citing Ward v Williams (1955) 92 CLR 496 at 507; [1955] HCA 4. ↑
[84]
(2009) 197 A Crim R 399 at 416 [146], quoting John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 452 per Brennan J. ↑
[85]
(1998) 194 CLR 355 at 384 [78] per McHugh, Gummow, Kirby and Hayne JJ. ↑
[86]
(1998) 194 CLR 355 at 384 n 56 per McHugh, Gummow, Kirby and Hayne JJ. ↑
[87]
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 345-346 per McHugh J; [1991] HCA 28; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613 per Lord Reid. ↑
[88]
Mills v Meeking (1990) 169 CLR 214 at 226 per Mason CJ and Toohey J (Brennan J agreeing); [1990] HCA 6; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 346 per McHugh J. ↑
Acts Interpretation Act 1954 (Q), s 2, which provides that "[t]his Act applies to all Acts (including this Act)." See also GTK Trading Pty Ltd v Export Development Grants Board (1981) 40 ALR 375. ↑
[91]
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron JJ; [1990] HCA 41. ↑
[92]
Section 14B of the Queensland Acts Interpretation Act, which permits some reference to extrinsic material, may be of assistance. ↑
[93]
Criminal Code (Q), ss 668A, 668B and 668C (which concerns the reservation of a case for consideration upon the arrest of a judgment). ↑
[94]
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161-162 per Gibbs CJ, Stephen, Mason and Wilson JJ; [1981] HCA 48; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 616 per Mason CJ, 619 per Wilson and Dawson JJ, 627-628 per Toohey J; [1987] HCA 23; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 29 [27]-[28], 32 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 30; Lipohar v The Queen (1999) 200 CLR 485 at 516-517 [78] per Gaudron, Gummow and Hayne JJ; [1999] HCA 65; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 590 [64]-[65] per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 1; Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268 at 280 [36] per French CJ; [2009] HCA 18; Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320 at 332 [19] per French CJ, Gummow and Bell JJ, 353 [78] per Hayne and Kiefel JJ; [2010] HCA 24. ↑
[95]
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 168 per Dixon J; [1945] HCA 50. See also Abebe v The Commonwealth (1999) 197 CLR 510 at 605 [280] per Callinan J; [1999] HCA 14; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 459-460 [77] per McHugh J; [1999] HCA 19; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 602-603 [18]‑[20] per Gleeson CJ and McHugh J; [2000] HCA 11; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 590-591 [66] per Gleeson CJ, Gaudron and Gummow JJ. ↑
[96]
(2010) 85 ALJR 195; 272 ALR 465; [2010] HCA 45. ↑
[97]
(2010) 85 ALJR 195 at 200 [18] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; 272 ALR 465 at 470; see also (2010) 85 ALJR 195 at 205-206 [49]; 272 ALR 465 at 478. ↑
[98]
(2001) 207 CLR 584 at 605 [57] per Gaudron, Gummow and Hayne JJ. ↑
[99]
(2010) 85 ALJR 195 at 205 [47] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; 272 ALR 465 at 477. ↑
[100]
A useful list of processes loosely designated "appeals" appeared in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298 per Glass JA and was cited in Walsh v Law Society (NSW) (1999) 198 CLR 73 at 90 n 51 per McHugh, Kirby and Callinan JJ; [1999] HCA 33. ↑
[101]
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107 per Dixon J; [1931] HCA 34; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619 per Mason J (Barwick CJ and Stephen J agreeing); [1976] HCA 62. ↑
[102]
Allesch v Maunz (2000) 203 CLR 172 at 181 [23] per Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 40. ↑
[103]
Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23] per Gaudron, McHugh, Gummow and Hayne JJ; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 [13] per Gleeson CJ, Gaudron and Hayne JJ; [2000] HCA 47. ↑
[104]
Allesch v Maunz (2000) 203 CLR 172 at 180 [23] per Gaudron, McHugh, Gummow and Hayne JJ. ↑
[105]
CDJ v VAJ (1998) 197 CLR 172 at 202 [111] per McHugh, Gummow and Callinan JJ. ↑
[106]
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36; see Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23] per Gaudron, McHugh, Gummow and Hayne JJ. ↑
[107]
Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1975 at 993. ↑
[108]
Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ; [1987] HCA 12. See also Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 499 [55] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 and authorities there cited. ↑
[109]
See the discussion of "manifest inadequacy" in Hili v The Queen (2010) 85 ALJR 195 at 207-208 [58]-[60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; 272 ALR 465 at 480-481. ↑
[110]
(2009) 197 A Crim R 399 at 417 [154]. This reference to the respondent is a reference to the appellant in this Court. ↑
[111]
R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 at [203]. This paragraph, which appears in the published medium neutral version of the case, does not appear in the published report in the Australian Criminal Reports. ↑
[112]
(1936) 55 CLR 499 at 504-505; [1936] HCA 40. Dixon, Evatt and McTiernan JJ said:
[113]
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." ↑
[114]
Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1939 at 1716. ↑
[115]
(1936) 55 CLR 509 at 519; [1936] HCA 42. The same is true of Harris v The Queen (1954) 90 CLR 652 at 655; [1954] HCA 51. ↑
[116]
In this respect the Court of Appeal majority used some colourful language - it is not adopted here, but only drawn to attention lest oblivion overtake it: R v Lacey (2009) 197 A Crim R 399 at 415 [142] (last sentence). ↑
[117]
R v Lacey (2009) 197 A Crim R 399 at 428 [267]. ↑
[118]
R v Lacey (2009) 197 A Crim R 399 at 407 [127] per de Jersey CJ, Keane, Muir and Chesterman JJA. ↑
[119]
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at 89-90 [55]-[59]; [2008] HCA 42. ↑
[120]
Williams v The King [No 2] (1934) 50 CLR 551 at 567. ↑
Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 18 April 1975 at 834-835. ↑
[123]
R v Wolff (1914) 10 Cr App R 107 at 110: see House v The King (1936) 55 CLR 499 at 505. ↑
[124]
At [67] n 154. See also Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; [1949] HCA 26, where Dixon J, speaking of the decision of an official but in terms relevant to judicial discretionary decisions, said of the residual category:
[125]
"If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."
[126]
See also Hili v The Queen (2010) 85 ALJR 195 at 207 [58]; 272 ALR 465 at 480; [2010] HCA 45. ↑
[127]
This points to the fact that the practical difference between the majority and minority views in the Court of Appeal may be slight: for even on the majority view, the Court's discretion to decline to interfere will very commonly be exercised against interference if there is no error in principle. ↑
Lacey v Attorney-General of Queensland [2011] HCA 10
[2000] HCA 17
[1936] HCA 42
[1994] HCA 49
[1927] HCA 4
[1990] HCA 6
[1981] HCA 48
AI Analysis
Outcomeappellant
Disposition:
Appeal allowed. Order of the Court of Appeal made on 11 September 2009 set aside and in its place order that the appeal to that Court be dismissed.
The purpose imputed to s 669A(1) by the majority also invites reflection upon the observation in Wong v The Queen[137] that a sentence itself gives rise to no binding precedent and that[138]:
In our opinion, the appellate jurisdiction conferred upon the Court of Appeal by s 669A(1) requires that error on the part of the sentencing judge be demonstrated before the Court's "unfettered discretion" to vary the sentence is enlivened. The unfettered discretion may be taken to confer upon the Court of Appeal in such a case the power to substitute the sentence it thinks appropriate where error has been demonstrated. The appeal should be allowed. The question that then arises is whether the matter should be remitted to the Court of Appeal on the basis that it did not determine whether the trial judge erred in principle or imposed a manifestly inadequate sentence indicative of such error.
In allowing the Attorney-General's appeal, the majority in the Court of Appeal said that it had been "apparent from what we have said in relation to the sentence imposed on the respondent in respect of his application for leave to appeal against sentence that we consider that the sentence which was imposed on him was inadequate."[152] The basis of the inadequacy there referred to appears from the penultimate paragraph of the majority's reasons for judgment disposing of the appellant's application for leave to appeal against sentence. The majority said[153]:
The appellant submitted, however, that the word "unfettered" was not otiose and that it did achieve something. He gave as an example of a "fetter" which the word removed a requirement that in re-sentencing the Court of Appeal sentence only at "the lower end of the available range for sentences of the particular type of offence in question at the time." First, that supposed requirement had no statutory warrant. Secondly, there are no express words in s 669A(1), and no implications from the express words used in s 669A(1), to suggest that that factor - which may well be a relevant discretionary factor - is more significant or controlling than any other[172]. And, thirdly, that submission leaves unanswered the question why the Court of Appeal's discretion is partially but not wholly unfettered - unfettered at the "second stage", but fettered at the "first stage".
The existence of that unanswered question illustrates why the construction advocated by the appellant is artificial. It is artificial because there is no reason on the face of the language to treat the "unfettered" aspect of the Court of Appeal's responsibilities as limited to the "second stage" when a new sentence is selected, and as not extending to the "first stage" of deciding whether or not to interfere with the sentence at all. When Knox CJ and Powers J in Whittaker v The King spoke of an "unlimited judicial discretion"[173] (which expression Evatt and McTiernan JJ construed as meaning "unfettered discretion"[174]) they meant not only that the appellate court had liberty to increase the sentence at the "second stage", but also that it could decide to do so free from any need at the "first stage" to make a finding that, before increasing the sentence, the sentencing judge had proceeded on a wrong principle. That is the natural construction of "unfettered discretion". A discretion which exists only in relation to the second stage and does not exist in relation to the first is not an unfettered discretion.