(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para
6 Firstly, it is to be borne in mind that the Crown has a statutory right of appeal.
7 Secondly, as such an appeal is against the exercise of a discretionary judgment at first instance, the considerations referred to in paragraph (a) of the passage cited from R v Wall apply.
8 Thirdly, while it is undoubtedly desirable that appeals by the Crown be rare, that must greatly depend upon the extent to which there is error, or there are good grounds for thinking, there is error by first instance judges in the exercise of their sentencing discretions. Although cases answering that description may only be a small proportion of the total number of cases where sentences are imposed, my experience over the last ten years or so sitting in this Court is that such cases are not "rare". Remarks of the Chief Justice in R v Baker [2000] NSWCCA 85 are to similar effect. Except possibly when overruled on appeal, the results of such cases all find their way into the sentencing statistics and are held up in the future as indicative of appropriate sentences. As I have remarked previously in this Court, it is almost unheard of for counsel for an offender to seek to argue from the first principles of sentencing. Rather is their preference to take this Court to the statistics, commonly accompanied by the submission, explicit or implicit, that this Court should regard the statistics as in practical terms setting the available range. Experience makes it apparent that this approach is too often accepted in the District Court.
9 Fourthly, I have concerns about Wood CJ at CL's statement that "unless there is a clear error of principle identified, it would be exceptional for the Court to interfere".
10 It may be that his Honour was intending to do no more than indicate that the discretion which the Court has to interfere even when error is established is likely not to be exercised when a sentence is "manifestly inadequate" but only by a small margin. However, the Crown's statutory right to appeal and the law as laid down in House v R mean that this Court's entitlement to interfere is enlivened once error of principle, latent or patent is established, and this whether the error is obvious or only apparent after detailed consideration. Considered from another perspective, once error is established to the Court's satisfaction, the error is "clear".
11 I acknowledge also that in R v Baker to which his Honour referred, the Chief Justice with the concurrence of Grove and Hidden JJ said, in the course of an ex tempore judgment:
"19 … The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred."
12 However again it seems to me that whether successful Crown appeals, even those falling within the particular description enunciated by the Chief Justice should be rare must very much depend on the frequency with which error occurs at first instance. This Court has set its face against tinkering with sentences but if with sufficient frequency this Court adopts a general attitude that it will not interfere when sentences are not far below the threshold of manifest inadequacy, then in practical terms such inadequacy becomes acceptable. Again my experience is that it is not rare in this Court for Crown appeals on the basis that manifest inadequacy demonstrates latent error to succeed.
13 Fifthly, Wood CJ at CL's emphasis on "principle" may tend to distract the reader not familiar with what was said in Griffiths v R (1976-1977) 137 CLR 293 at 310, Malvaso v R (1989) 168 CLR 227 at 234, Everett v R (1994) 181 CLR 295, and Dinsdale v R (2002) 202 CLR 321 at [61-62] from a recognition that interference by this Court is warranted - subject to the matter of discretion referred to in Wood CJ at CL's paragraph (d) - even though manifest inadequacy or inconsistency in sentencing be not general but confined to one case, i.e. that the subject of the particular Crown appeal.
14 I shall quote from but one of these. In Malvaso v R (1989) 168 CLR 227 at 234, after quoting a passage from the judgment of Barwick CJ in Griffiths v R at p 310 where his Honour had said, inter alia, that "an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons", Deane and McHugh JJ said:-
"That statement of the rare circumstances in which an appeal by the Attorney General can be justified should, in our view, be expanded by the inclusion of express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which Barwick CJ saw as being "error in point of principle. (See Griffiths.)"
15 Furthermore, although in paragraph (c) of his summary Wood CL at CL refers to remarks in Dinsdale v R (2002) 202 CLR 321, at [61-62], his Honour's summary does not embody the strength of them.
16 There is nothing in paragraph (d) of the extract from R v Wall with which I would disagree. However, I wonder at times whether too much weight is not given to this factor. As I said in R v Kalache [2000] NSWCCA 2, a Crown appeal to this Court in the case of an offender who had previously served significant periods of imprisonment for drug supply, and in the proceedings under appeal had been found to be the, or a, principal of a large scale network, who had pleaded guilty to, inter alia, 6 counts of manufacturing or supplying or being knowingly concerned in the manufacture or supply of 4 different types of prohibited drugs during, in total, a 2½ year period, and in quantities such that he was liable to be sentenced to imprisonment for life on each of 3 counts and to imprisonment for 20 years on each of another 2 counts, at [210-1]:-
"… I do not suggest that in all cases evidence concerning the impact of Crown appeals on a respondent is necessary but given this Respondent's antecedents and the circumstances of his offending with which the Court is concerned, before I would be prepared to conclude that there was any substantial impact on the Respondent arising in consequence of the fact of double jeopardy itself, I would require such evidence. This might well include whatever advice the Respondent received prior to being sentenced. Although I do not need to rely on the fact, I would suspect that the Respondent could not believe his luck at the sentence imposed.
Nor should it be forgotten that the jeopardy in sentencing which many offenders face is primarily of their own doing, particularly where their offending is premeditated and occurs for financial benefits seen to arise from it. Though not an immediate cause, it may fairly be said that their actions are also a not insignificant contributing factor to any double jeopardy which may arise. The prospect and risk of being sentenced for 7 very serious offences was not sufficient to deter the Respondent from committing one or more of them, almost on a daily basis for months. There is nothing to suggest that that daily jeopardy, voluntarily undertaken, unduly distressed him. Indeed, given the duration or magnitude of his offending, one might be pardoned for thinking he bore the risk with fortitude."
17 I do not regard paragraph (e) of the extract from R v Wall as fully and accurately stating the law. Because of the reference to prior authority contained therein, I take the liberty of quoting again from what I said in R v Kalache, at [204-208]:-
"Even though an appeal by the Crown is, in New South Wales, as of right, the exercise of the right involves the respondent to such an appeal being subjected to "double jeopardy" - once at first instance and once on appeal - of punishment, generally imprisonment. The topic has been the subject of much discussion of which it only necessary to mention Cooke v Purcell (1988) 14 NSWLR 51 per Kirby J, and, in a wider context, Pearce v R (supra). Despite statutory authorship of the double jeopardy, sensitivity to it has led to restraint on the part of the Courts in allowing such appeals.
Hence, even where the Crown in an appeal under s 5D of the Criminal Appeal Act establishes appealable error in a sentence imposed, this Court possesses a discretion as to the course it will take. Sometimes that discretion will be exercised so as to refuse the appeal and sometimes it will allow the appeal but impose a sentence lower than it thinks should have been imposed at first instance - see- R v Holder (supra) at 269 and the cases there cited. R v Irwin (supra) was a case where the latter course was followed. In R v Allpass (1993) 72 A Crim R 561 at 563 this Court said that that was the course "ordinarily" adopted. That statement was quoted in R v Warfield (1994) 34 NSWLR 200 at 209. In R v Bang (unreported, CCA, 1 September 1992), Hunt CJ at CL, who was a party to those last mentioned decisions, expressed himself thus:-
'It is this element of double jeopardy involved in successful Crown appeals which results in the fresh sentence imposed by this Court usually being less than that which ought to have been imposed at first instance: Regina v Holder & Johnston [1983] 3 NSWLR 245 at 256, 269-270; Regina v Stephen Michael Anthony Baxter (CCA, 7 May 1991, unreported) at 4. It was accepted in the first of those two cases, and in many others, that the distress occasioned to a respondent to a Crown appeal by twice being put in jeopardy usually requires a discount to be applied by this Court. Indeed, so important is this consideration in Crown appeals that this Court will not infrequently exercise its discretion to dismiss the appeal because of the unfairness or injustice which would otherwise be occasioned to the respondent by reason of his double jeopardy: Regina v Holder & Johnston (at 255-256).'
Sometimes the Court will impose the minimum sentence which should have been imposed at first instance - see R v Rose (unreported, CCA, 23 May 1996), R v Baugh [1999] NSWCCA 131. In R v Tony Giam (No 2) [1999] NSWCCA 378 at [28] it was said that "where a Crown appeal succeeds, the appropriate sentence is one which is at the bottom of the range". In R v Hanley (unreported, CCA, 9 October 1998), this course was described as "the practice of the Courts". Sometimes, as in R v Holder itself, this will involve the imposition of the maximum provided for by the statute.
I am not aware of any decision which contains a reasoned discussion of why one rather than another of these approaches should be adopted in a particular case. None was brought to the Court's attention during the hearing nor was there any debate on the topic. It may be that in practical terms the adoption of one rather than the other approach does no more than reflect what seems to individual judges to be the appropriate exercise of the discretion in the individual case.
In deciding what course to adopt following the demonstration of appealable error the Court will seek to take account of all relevant factors. From time to time these will include any delay in the institution or prosecution of a Crown appeal, the change in character from a non-custodial to a custodial sentence and the extent to which a sentence originally imposed has been served. Distress to a respondent in having a sentence increased has been inferred and recognised - see R v Tiege (unreported, CCA, 19 November 1982) and quoted by Priestley JA in R v Holder (at 269)."