By Thomas Hurley -
Key decisions
- CMB v Attorney-General for New South Wales [2015] HCA 9
- Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10
- Grant Samuel Corporate Finance Pty Limited v Fletcher [2015] HCA 8
- Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12
- Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11
- Duncan v New South Wales [2015] HCA 13
- Independent Commission Against Corruption v Cunneen [2015] HCA 14
Criminal Law
Sentence – appeals – crown appeal – crown appeal that non-custodial sentence manifestly inadequate – sentence imposed with acquiesce of crown – onus on crown appeals against sentence – disclosure by offender of unknown guilt in pre-sentence assessments
In CMB v Attorney-General for New South Wales [2015] HCA 9 (11 March 2015) CMB pleaded guilty to child abuse offences. In undergoing a pre-sentence assessment for a diversion program he disclosed further child abuse offences. In 2013 CMB was sentenced to a non-custodial sentence by the District Court.
This Court was under the impression that the regulations of the diversion program for offenders allowed further offences disclosed in the program to be dealt with under the diversion program.
This was in error. The prosecution (conducted by the NSW DPP) accepted a non-custodial sentence was appropriate in any event as the offences disclosed in the diversion program were ones the victim could not recall.
The NSW Attorney-General (as well as the NSW DPP) was authorised to prosecute and to conduct the appeals.
The Attorney-General appealed to the Court of Criminal Appeal (NSW) contending the sentence was manifestly inadequate. In 2014 this Court upheld the appeal and substituted a custodial sentence. CMB’s appeal to the High Court was allowed by all members: French CJ with Gageler; Kiefel, Bell and Keane JJ jointly. All members considered the limited role of crown appeals against sentence as being intended to lay down general principles and not to correct error in the subject case as in an offender appeal.
The High Court concluded the Court of Criminal Appeal had erred by not requiring the Attorney-General to negate any reason (such as conduct at the sentencing hearing) why the Court of Criminal Appeal should not intervene. The High Court also allowed the appeal on the ground the Court of Criminal Appeal had also erred in finding it regarded the sentence imposed as unreasonably disproportionate to the offending rather than whether the sentencing judge could not have done so (s 23(3) Crimes (Sentencing Procedure) Act 1999 (NSW)). Appeal allowed. Matter remitted to Court of Criminal Appeal (NSW).
