Dinsdale v The Queen [2000] HCA 54

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, GUMMOW, KIRBY AND HAYNE JJ

CHRISTIN ROBERT DINSDALE APPELLANT

AND

THE QUEEN RESPONDENT

Dinsdale v The Queen [2000] HCA 54

Date of Order: 7 September 2000

Date of Publication of Reasons: 12 October 2000

P42/2000

ORDER

1. Appeal allowed.

2. Orders of the Court of Criminal Appeal of Western Australia made

on 2 February 1999 be set aside.

3. In place of those orders, order that the appeal to that Court is

dismissed.

On appeal from the Supreme Court of Western Australia

Representation:

A G Braddock for the appellant (instructed by Young & Young)

R E Cock QC with J A Girdham for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Catchwords

Dinsdale v The Queen

Criminal law – Sentencing – Crown appeals against sentence – Circumstances in which Court of Criminal Appeal should allow appeal against sentence and substitute its own sentence – Necessity to find and identify error before allowing appeal – Whether failure to do so in reasons of Court of Criminal Appeal.

Criminal law – Sentencing – Crown appeals against sentence – Circumstances in which judicial discretion to suspend sentence should be exercised – Whether power to suspend sentence is confined by reference wholly, mainly or specially to the effect on rehabilitation of the offender.

Criminal Code (WA), s 688.

Sentencing Act 1995 (WA), ss 39(2), 76.

1. GLEESON CJ AND HAYNE J. The appellant appeals from orders of the Court of Criminal Appeal of Western Australia (Kennedy, Pidgeon and Murray JJ) allowing a prosecution appeal against the sentence imposed on him in the District Court of Western Australia. The appellant had been indicted in the District Court on one count of sexual penetration of a child under the age of 13 years and one count of indecently dealing with that child. Both offences were alleged to have occurred on the same date and at the same place. The appellant pleaded not guilty but was convicted on both counts. The trial judge (Judge Viol) sentenced him to concurrent terms of suspended imprisonment (each term being of 18 months, suspended for 18 months). 2. The Court of Criminal Appeal allowed the prosecution appeal, set aside the sentence imposed by the trial judge on the offence of sexual penetration and in lieu, ordered that the appellant be sentenced to 30 months' imprisonment. The order for suspension of the term of imprisonment was set aside. 3. It is desirable to restate some propositions which are fundamental to criminal appeals but which may sometimes be obscured by the development of shorthand descriptions of what is done in particular cases. It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the Court is given, and the circumstances in which those powers may be exercised. In this particular case, the Court of Criminal Appeal of Western Australia was exercising jurisdiction given by s 687(1) of the Criminal Code (WA) to hear and determine a prosecution appeal against sentence brought pursuant to s 688(2). That latter sub‑section provides: