Munda v Western Australia [2013] HCA 38

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

ERNEST MUNDA APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA RESPONDENT

Munda v Western Australia [2013] HCA 38 2 October 2013 P34/2013

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Western Australia

Representation

A Boe with D D Brunello for the appellant (instructed by Aboriginal Legal Service of Western Australia (Inc))

J McGrath SC with L M Fox for the respondent (instructed by Director of Public Prosecutions)

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

CATCHWORDS

Munda v Western Australia

Criminal law – Appeal – Prosecution appeal against sentence – Where appellant pleaded guilty to manslaughter of de facto spouse – Where appellate court resentenced appellant on ground that original sentence manifestly inadequate – Whether appellate court failed to correctly apply principles attending disposition of prosecution appeal against sentence on ground of manifest inadequacy – Whether finding of manifest inadequacy open if similar sentences imposed for comparable offences – Whether appellate court erred in failing to exercise residual discretion.

Criminal law – Sentence – Principles – Relevance of deprived background of Aboriginal offender – Whether appellate court gave appropriate regard to appellant's antecedents and personal circumstances.

Words and phrases – "aggravating factors", "antecedents and personal circumstances", "manifestly inadequate", "mitigating factors", "residual discretion", "social disadvantage".

Criminal Appeals Act 2004 (WA), ss 24(1), 31, 41(4). Sentencing Act 1995 (WA), ss 6, 8(1).

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, GAGELER AND KEANE JJ. The appellant was convicted on his plea of guilty to the manslaughter of his de facto spouse, contrary to s 280 of the Criminal Code (WA). The appellant was sentenced by Commissioner Sleight in the Supreme Court of Western Australia to a term of imprisonment of five years and three months, with a non‑parole period of three years and three months. The respondent appealed against this sentence on the ground that it was manifestly inadequate. The Court of Appeal of the Supreme Court of Western Australia allowed the appeal, and resentenced the appellant to seven years and nine months imprisonment. He remained eligible for parole in accordance with the order of Commissioner Sleight. In this Court, the appellant submitted that the Court of Appeal erred in failing to appreciate that there was no sufficient ground for interference by it in the sentence imposed by Commissioner Sleight, and in failing to have proper regard to the appellant's personal circumstances as an Aboriginal man. In particular, it is said that systemic deprivation and disadvantage, including an environment in which the abuse of alcohol is endemic in indigenous communities, should have been, but was not, taken into account by the Court of Appeal. For the reasons that follow, the appellant's submissions should be rejected and his appeal dismissed. Factual background At the time the deceased was killed, the appellant and the deceased were staying at the Mindi Rardi community near Fitzroy Crossing. They had been in a relationship for approximately 16 years and had four children together. They attended a local tavern on the afternoon of 12 July 2010. Both became intoxicated and the appellant used some cannabis. When the pair returned to their house an argument developed. Each accused the other of being unfaithful. The appellant punched the deceased on numerous occasions, threw her about their bedroom and repeatedly rammed her head into the walls. During the attack the deceased repeatedly screamed at the appellant, telling him to leave her alone. At one stage, the appellant caused the deceased to fall onto a bed mattress. He then stood over her and repeatedly punched her in the face. After the appellant had finished assaulting the deceased, they both went to sleep. The next morning, the appellant had sexual intercourse with the deceased. He then left the house to get some tea. When the appellant returned, he noticed that the deceased had stopped breathing. He called for medical assistance and attempted first aid. The deceased was transported to Fitzroy Crossing Hospital and was pronounced dead on arrival. A post-mortem examination confirmed that she had died from traumatic brain injury. She also had a fracture to her left jaw and a number of broken ribs. It is not disputed that all of her injuries were caused by the appellant. The appellant's previous history of domestic violence Previously, on 4 May 2009, the appellant had been sentenced to 12 months imprisonment, conditionally suspended for 12 months, for the offence of unlawfully doing grievous bodily harm to the deceased on 23 October 2008. On that occasion the injuries inflicted on the deceased included a fractured femur, tibia and right radius as well as deep lacerations to her forehead inflicted by the use of a metal shovel. The injuries to the deceased's leg were sufficiently serious to require her to be transferred from Broome Hospital to Royal Perth Hospital for treatment. On 4 May 2009, the appellant was also sentenced to six months imprisonment, conditionally suspended for 12 months, for two offences of common assault upon his 13 year old niece and the ex‑partner of the appellant's sister. The appellant killed the deceased a little more than two months after the expiration of the conditionally suspended imprisonment order. At the time of the deceased's death, the appellant was subject to a lifetime violence restraining order in relation to the deceased. This order prohibited the appellant from having any contact with the deceased. It had evidently been ignored by both the appellant and the deceased in that they had continued their domestic relationship. The sentence at first instance The respondent submitted before Commissioner Sleight that "for this particular offence … a sentence in the range of seven to nine years' imprisonment would not be inappropriate". Section 6 of the Sentencing Act 1995 (WA) ("the Sentencing Act") provides relevantly that: "(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence. (2) The seriousness of an offence must be determined by taking into account – (a) the statutory penalty for the offence; and (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and (c) any aggravating factors; and (d) any mitigating factors." By s 8(1) of the Sentencing Act "mitigating factors" are "factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished." As to the seriousness of the offence, the maximum penalty was 20 years imprisonment. Commissioner Sleight referred to three features of the offence committed by the appellant which he regarded as aggravating factors. First, his Honour referred to the earlier offence against the deceased and the violence restraining order in relation to her. Secondly, his Honour noted that the appellant was in a domestic relationship with the deceased, which should have provided her with protection. Thirdly, the attack was sustained and involved considerable violence. The Commissioner concluded that, within the broad range of offending punishable as manslaughter, the offending in this case did not fall within the "worst category of offences of this type" but was nonetheless "towards the upper end of the range of seriousness." The Commissioner then turned to the appellant's personal circumstances, noting that he was a traditional Aboriginal man and that as a child he was exposed to the "negative influences of alcohol and family violence." His Honour noted that the appellant had a long history of alcohol and cannabis abuse. The appellant had attended school until year 10 and went on to hold various jobs. However, he had been unemployed for about four years when he committed the offence. The appellant also had a long history of offending dating back to 1997. Some of the offences involved violence, such that the Commissioner concluded that the offence for which he was to be sentenced could not be considered uncharacteristic. Commissioner Sleight accepted that he was obliged to take the appellant's circumstances of disadvantage into account as mitigatory factors: "The sentencing of Aboriginal people can present unique problems which must be addressed. Firstly, it should be stated that the same sentencing principles apply in every case, irrespective of the [identity] of an offender within a particular ethnic group. Secondly, it is proper for a court to recognise the problems of alcohol abuse and violence which exist in many Aboriginal communities and the social disadvantages that they create. These social disadvantages often create a conditioning within the community to accept as normal alcohol abuse and violence, as if it were a way of life. In such circumstances, there needs to be a recognition that, although punishment plays a role in personal and general deterrence, to change such behaviour requires a change in the social circumstances. However, notwithstanding these considerations, the seriousness of an offence must always be given proper weight. Like in all communities, the sentences imposed play a role in trying to protect the vulnerable. This includes, in Aboriginal communities, Aboriginal women, who are frequently subject to violence." His Honour also took account of the prospect of the appellant suffering traditional payback in the form of severe corporal punishment, but gave "limited [weight] to it." The appeal to the Court of Appeal Section 24 of the Criminal Appeals Act 2004 (WA) ("the Criminal Appeals Act") authorises an appeal by a prosecutor to the Court of Appeal against the sentence imposed on a convicted person. Sub-sections (1) and (4) of s 31 of the Criminal Appeals Act provide relevantly that, in the case of an appeal by a prosecutor under s 24(1) against sentence, the Court of Appeal may allow the appeal if, in its opinion, a different sentence should have been imposed. In such a case, by virtue of s 31(5), where the Court of Appeal allows an appeal, the Court must set aside the sentence and may instead impose a sentence that is more or less severe, or send the matter back to the court that imposed the sentence to be further dealt with. The respondent appealed against the sentence imposed by Commissioner Sleight on the ground that it was manifestly inadequate. McLure P, with whom Mazza JA agreed, concluded that the offending was high on the scale of seriousness for that offence, and held that the sentence imposed by Commissioner Sleight was manifestly inadequate. Buss JA, in a separate judgment, reached the same conclusion, observing that "the sentence of five years three months' imprisonment … failed properly to recognise the very serious offence committed by the [appellant]". The appeal to this Court The appellant argued that the Court of Appeal erred in three separate ways. First, it was said that it failed to apply "the principles that attend the disposition of a State appeal brought on the basis of alleged manifest inadequacy." Secondly, the appellant argued that the Court of Appeal did not appropriately determine "the scope and regard that should be given to the appellant's antecedents and personal circumstances." Finally, it was argued that the Court erred in the "identification and exercise of its discretion not to set aside the original sentence, even if sufficient error was found." In the interests of coherence, each of the grounds of appeal will be discussed separately. Ground 1 – Manifest inadequacy In order to appreciate the first ground of the appellant's challenge to the decision of the Court of Appeal, it is necessary to note the following observations of McLure P: "It is clear from the State's written submissions that the gravamen of its complaint concerns weighting errors; in particular, that the sentencing judge gave too little weight to deterrence, personal and general." McLure P also said that: "It is the experience of judicial officers in this jurisdiction that the gross over-representation of Aboriginal people in this State's criminal justice system … is directly related to alcohol abuse and, more recently, often in combination with illicit drug abuse. As those working in the criminal law in this State would know, a grossly disproportionate number of offenders convicted and sentenced for manslaughter in the Supreme Court in recent years are Aboriginal, as are most of their victims." The appellant argued that the Court of Appeal did not proceed by reference to standards of sentencing customarily observed, and did not assess the seriousness of the appellant's offending by a comparison with similar cases. That being so, the Court of Appeal could not have been, as it was required to be, "convinced that the sentence [was] definitely outside the appropriate range" so as to be satisfied that it was manifestly inadequate. In addition, the appellant argued that the Court of Appeal approached the appeal before it as raising specific "weighting errors". This approach was said to undermine the competency of the appeal itself because the only ground of appeal was manifest inadequacy of the sentence. The appellant also seized upon the comment by McLure P concerning the "grossly disproportionate number of offenders convicted and sentenced for manslaughter … in recent years [who] are Aboriginal, as are most of their victims", to mount an argument that McLure P and Mazza JA had proceeded upon a consideration of the prevalence of the kind of offending with which this case is concerned. That was said to be an error, given that no ground of error in this regard had been raised by the respondent's appeal. "Weighting errors" There was nothing unorthodox in the Court of Appeal's approach to the question of manifest inadequacy. Its view in that respect was properly informed and explained by having regard to the maximum sentence for the offence, the gravity of the offending conduct on the scale of seriousness, and the personal circumstances of the offender. House v The King established that appealable error in the exercise of a discretionary judgment may be established by demonstration of specific error of fact or principle apparent from the primary judge's reasons or because: "the result embodied in [the primary judge's] order … is unreasonable or plainly unjust, [such that] 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." That is the approach which McLure P expressly adopted. Her Honour's reference to "weighting errors" does not suggest that her Honour proceeded to decide the appeal on a ground different from that urged by the respondent. Although McLure P used the phrase "weighting errors", it is clear from the context of her remarks that her Honour was not using the phrase to introduce a discussion of specific error but to expose the reasoning by which she reached a conclusion of manifest inadequacy. The considerations to which her Honour referred serve to explain why the sentence imposed at first instance was so unreasonable and plainly unjust as to manifest the error of inadequacy. Prevalence As to prevalence, there was some discussion in this regard in the Court of Appeal during oral argument, but ultimately no reliance was placed on it by the Court of Appeal. McLure P did not mention it as a factor material to her conclusion, and Buss JA expressly disavowed any reliance upon prevalence. McLure P did not alter the ground on which the appeal was fought by referring to the gravity of the offence of alcohol‑fuelled domestic violence by indigenous men against indigenous women. The point of her Honour's reference to the nature and scale of the problem was not to justify a review of sentence range to prescribe future guidelines. Rather, as is apparent on a fair reading of her Honour's reasons, her Honour was proceeding to make the point that, even in the context of the circumstances of social disadvantage in which domestic violence commonly occurs, the seriousness of the offence is such as to make a compelling claim on the sentencing discretion. And that is so notwithstanding that the number of Aboriginal offenders (and victims) is "grossly disproportionate". Comparable sentences The appellant argued that the sentence imposed by Commissioner Sleight was not markedly different from that imposed in cases which were "most closely comparable" with the present case. As part of that argument, the appellant contended that, absent a yardstick by reference to which the sentence imposed at first instance could be seen to be inadequate, there was no basis for the Court of Appeal to allow the appeal. Further, the appellant noted that the sentence imposed by the Court of Appeal was higher than the most comparable case placed before Commissioner Sleight, R v Gordon, where an appeal by the prosecution against a sentence of seven years imprisonment for manslaughter was dismissed. This aspect of the appellant's argument should be rejected for three reasons. First, the appellant's argument assumes that only "closely comparable" cases can provide a yardstick with which to judge the adequacy of a sentence. In this regard, the appellant invoked this Court's decision in Hili v The Queen in support of the proposition that, absent a marked departure by Commissioner Sleight from closely comparable cases, the Court of Appeal could not conclude that the original sentence was manifestly inadequate. But in Hili it was distinctly not said that a yardstick derived by reference to comparable cases was an essential precondition of a conclusion that a sentence was manifestly inadequate. It was acknowledged that such a disparity is one pointer towards inadequacy; but French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ expressly approved the statement of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa that previous sentences may be used to establish a range of sentences that have been imposed but not that the range is correct. In particular, the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence." Secondly, as Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen, the maximum penalty fixed by the legislature for the offence provides, "taken and balanced with all of the other relevant factors, a yardstick." The maximum penalty for manslaughter was 20 years imprisonment, and, as the Court of Appeal noted, this case was a serious example of that offence. Thirdly, the decision in Gordon, delivered in 2000, was, as counsel for the respondent pointed out to Commissioner Sleight, a Crown appeal which was decided by reference to considerations of double jeopardy which are no longer material. As a result, as McLure P noted, the decision in Gordon afforded "[l]ittle guidance" in relation to this case. It may also be noted that, in Gordon, Wheeler J delivered a powerful dissenting judgment. Her Honour would have allowed the State's appeal and substituted a sentence of nine years imprisonment without eligibility for parole. Her Honour said: "In this case, the offence is one of the most serious known to the law. The maintenance of adequate standards of punishment for a crime involving the taking of human life is an important consideration. While the role of the criminal law in deterring the commission of violent acts is problematic, and particularly so in relation to Aboriginal communities, it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously". The passage of time has not lessened the force of that statement. While the appellant's offence may not have been in the very worst category of offences of manslaughter, it is not easy to think of worse examples. Given that the maximum available sentence was 20 years imprisonment, and given the prolonged and brutal beating administered by the appellant upon his de facto spouse, a conclusion that the sentence imposed at first instance was manifestly inadequate cannot be said to have been wrong. Ground 2 – Antecedents and personal circumstances It is relevant to the second aspect of the appellant's challenge to the decision of the Court of Appeal to note that McLure P observed that: "Even if it is established that a person's addiction to alcohol and/or drugs is mitigatory because of events in their formative childhood years or otherwise, that does not inevitably reduce the weight to be given to personal deterrence. Indeed, addictions ordinarily increase the weight to be given to personal deterrence (and/or community protection) because of the associated increase in the risk of reoffending. ... Further, the courts must exercise caution in characterising or treating an offender as a 'victim' because it can lead adult perpetrators to wrongly believe that they are not truly responsible and accountable for their conduct, leading to a failure to properly protect the community. … Moreover, it is wrong in principle to reduce the weight to be given to general deterrence in circumstances where alcohol-fuelled violence is endemic in the community generally, even if not sufficiently deterred in fact by the prospect of imprisonment". Further, as to the appellant's personal circumstances, McLure P said: "The evidence in this case did not establish that the [appellant] was raised in circumstances of such deprivation and difficulty as to render his addictions mitigatory. It is the case that the [appellant] will be separated from his family and country for the term of his imprisonment. However, as he is able to communicate in English and has had prior experience in the prison system, it cannot be said that imprisonment would bear particularly harshly upon him. A sentence of five years and three months' imprisonment for the offence committed by the [appellant] is, having regard to all relevant circumstances, manifestly inadequate and should be set aside. It fails to give due recognition to the seriousness of the offence, the seriousness of the circumstances in which it was committed and the need for both personal and general deterrence. I would impose a sentence of seven years and nine months' imprisonment. The [appellant] will remain eligible for parole." Buss JA considered the appellant's personal circumstances and held that they "were of limited relevance and had little weight." As to those considerations, Buss JA said: "[T]o the extent they were relevant, [they] were decisively outweighed by other sentencing factors (namely, the protection of vulnerable women, personal deterrence and general deterrence) in the context of the very serious nature of the offending and the [appellant's] previous convictions for violent offending against the deceased and other women." Buss JA concluded: "I am satisfied that upon all relevant facts and circumstances, and all relevant sentencing considerations, being evaluated and weighed, the sentence of five years three months' imprisonment was manifestly inadequate. This is apparent when that sentencing outcome is viewed from the perspective of the maximum available penalty (20 years' imprisonment); the seriousness of the offending; the importance of the protection of vulnerable women, personal deterrence and general deterrence as prominent sentencing considerations; and after taking into account the general standards of sentencing applicable to the offence of manslaughter (bearing in mind that, as I have mentioned, there is no sentencing tariff for manslaughter and each case must be decided on its own facts), the value of human life and the [appellant's] personal circumstances." The appellant contended that the Court of Appeal erred in principle in treating his personal circumstances as having little, if any, mitigatory effect. The appellant disclaimed any contention that Aboriginality per se warrants leniency. Rather, the appellant's submission was that the disadvantage associated with the social and economic problems that commonly attend Aboriginal communities affected the appellant and that his antecedent circumstances should be treated as mitigatory, notwithstanding the weight to be given to considerations such as deterrence. Finally, it was said that both the sentencing judge and the Court of Appeal failed to give appropriate weight to the consideration that the appellant will likely suffer traditional punishment, namely being struck with nulla nullas by the family of the deceased, when released from gaol. It was submitted that the Court of Appeal did not have any regard to this factor. The appellant is said to be willing, and indeed anxious, to subject himself to traditional payback. His anxiety is said to be an aspect of what should have been given greater significance as a mitigating factor. Circumstances of social disadvantage In the absence of specific legislative direction of the kind discussed in the Canadian decisions of R v Gladue and R v Ipeelee, the starting point for discussion of this ground of appeal is the statement of Brennan J in Neal v The Queen: "The same sentencing principles are to be applied … in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal." The statement by Brennan J in Neal has consistently been applied in this country by intermediate appellate courts. Thus in Fernando, Wood J said: "[I]n sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender." In R v Fuller‑Cust, Eames JA observed that, in the application of the principle stated by Brennan J, regard to an offender's Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender's Aboriginality is not "overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored." Moreover, the personal disadvantages affecting an individual offender may be, because of the circumstances in which they were engendered, so deep and so broad that they serve to shed light on matters such as, for example, an offender's recidivism. Mitigating factors must be given appropriate weight, but they must not be allowed "to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence." It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide. It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long‑standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self‑help, and the consequent escalation of violent vendettas between members of the community. A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol‑fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law. The second point to be made here is that, as McLure P noted: "[A]ddictions ordinarily increase the weight to be given to personal deterrence (and/or community protection) because of the associated increase in the risk of reoffending." This observation by McLure P is particularly poignant in this case, given the very lenient sentence imposed on the appellant in May 2009 and its evident insufficiency to deter the appellant from the repetition of alcohol‑fuelled violence against his de facto spouse, or to afford her protection from such violence. The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending. It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree. The third point to be made here is related to the first two. As Gleeson CJ said in Engert: "[T]he interplay of the considerations relevant to sentencing may be complex … In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. … It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances." In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ adopted the explanation of the sentencing discretion given by Gaudron, Gummow and Hayne JJ in Wong v The Queen that the description of the balance struck by a sentence as an "instinctive synthesis" is not used "to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features." As to the balancing by the Court of Appeal of competing considerations in fixing upon a just sentence, it is important to bear in mind that, as Brennan J observed in Neal, "this Court is not regularly engaged in reviewing the merits of sentences in particular cases", and that the "weighing of relevant factors in the exercise of a sentencing discretion is best left to" the courts of criminal appeal of the States or the Full Court of the Federal Court, who have the benefit of "contemporary knowledge of sentences imposed in comparable cases and of local factors affecting the level of sentences". As to the sentence finally imposed by the Court of Appeal, it is not possible to say that the Court of Appeal's synthesis of competing considerations was affected by error. Traditional punishment There is something to be said for the view that the circumstance that the appellant is willing to submit to traditional punishment, and is anxious that this should happen, is not a consideration material to the fixing of a proper sentence. Punishment for crime is meted out by the state: offenders do not have a choice as to the mode of their punishment. The possibility that the appellant may, at some time in the future, face corporal punishment by way of payback was taken into account in his favour by the sentencing judge. The respondent accepted that that possibility is a factor relevant to sentencing. The Court of Appeal did not take a different view; and the respondent did not argue that this Court should take a different view. In these circumstances, this case does not afford an occasion to express a concluded view on the question whether the prospect of such punishment is a consideration relevant to the imposition of a proper sentence, given that the courts should not condone the commission of an offence or the pursuit of vendettas, which are an affront and a challenge to the due administration of justice. It is sufficient to say that the appellant did not suffer any injustice by reason of the circumstance that the prospect of payback was given only limited weight in his favour by the courts below. Ground 3 – Residual discretion It is relevant to the third ground of the appeal to note that, before the Court of Appeal, the appellant conceded that the common law principle of double jeopardy, the application of which moderated sentences imposed by the Court in successful State appeals against sentence, had been abrogated by s 41(4) of the Criminal Appeals Act, which provides: "The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) – (a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but (b) despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence." The appellant did, however, raise an issue as to whether s 41(4) altered the prevailing principles concerning the exercise of a court's power in relation to State appeals against sentence. All members of the Court of Appeal either accepted or were prepared to assume that, notwithstanding s 41(4), the Court of Appeal retained a residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient. McLure P noted that the purpose of an appeal by the prosecution was "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." As to the existence and nature of the residual discretion, her Honour said: "I will assume in the [appellant's] favour that there is a residual discretion to dismiss a State appeal against a sentence that is manifestly inadequate at the time of the appeal. However, such an outcome would be rare. With one possible exception, the residual discretionary considerations are themselves relevant to an assessment of whether a sentence is manifestly inadequate as at the date of the hearing of the appeal. Questions of parity (and disparity) may not inform such an assessment." McLure P concluded that there were no facts or circumstances which would justify or require the Court to exercise the residual discretion in this case. Buss JA gave extensive consideration to the nature and scope of the residual discretion, concluding after careful analysis that there was indeed a discretion to be exercised but that none of the discretionary factors agitated by the appellant warranted the exercise of the Court's discretion in his favour. The appellant relied, in particular, on the remarks made by French CJ, Crennan and Kiefel JJ in Green v The Queen concerning the purpose of a prosecution appeal under s 5D of the Criminal Appeal Act 1912 (NSW). Their Honours observed that the purpose is: "'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges." (footnote omitted) The remarks harked back to a comment of Barwick CJ in Griffiths v The Queen which, as explained in Everett v The Queen, must be understood as encompassing within its reference to "principles" the avoidance of manifest inadequacy or inconsistency in sentencing standards. They introduced a discussion of the residual discretion conferred by s 5D which included the statement that, despite there being a finding that a sentence is manifestly inadequate, an appellate court "may decide not to intervene so as not to disturb parity". The appellant argued that McLure P misinterpreted whatever was said in Green in remarking that "[s]ave where parity considerations arise, the residual discretion is only likely to be exercised if the error has not resulted in a manifestly inadequate sentence." The appellant argued that McLure P misapplied Green, pointing to the comments made by her Honour set out above. In addition, the appellant argued that, although McLure P held that there was "nothing in the facts and circumstances … that would require or justify this court exercising the residual discretion", her Honour gave no explanation as to why this was the case. It is to be noted that in Green French CJ, Crennan and Kiefel JJ referred to circumstances in addition to considerations of parity which might create injustice if a State appeal against sentence is allowed. Those circumstances were said to include "delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re‑sentencing on progress towards the respondent's rehabilitation." The conduct of the Crown might also be relevant, for example, if the Crown were to seek on appeal a higher sentence than it had successfully sought at first instance. To the extent that McLure P's observations suggest a more confined view of the scope of the discretion, they are unduly narrow. That having been said, none of the matters urged by the appellant was apt to exert a claim upon the residual discretion to dismiss the respondent's appeal. The first of these matters was that the grounds on which the Court of Appeal held that the initial sentence was manifestly inadequate had not been raised before Commissioner Sleight. That contention is, for the reasons already given, without substance. The second discretionary factor agitated by the appellant was that, having seen the accused, a sentencing judge is uniquely well placed to exercise the discretion. But to say this is merely to repeat an aspect of the argument, which has also been rejected, that the Court of Appeal was wrong to conclude that the initial sentence was manifestly inadequate. The third discretionary consideration relied upon by the appellant was that no error of principle was corrected by the Court of Appeal. This was not a case of mere leniency reflecting error: the Court of Appeal came to the conclusion that the sentence imposed was manifestly inadequate. That was sufficient to justify intervention given that to decline to intervene would have been to perpetuate a manifest injustice. The fourth consideration was that there was nearly one year delay in the hearing and determination of the appeal, and that under the original sentence the appellant was to become eligible for parole on 13 October 2013. McLure P specifically acknowledged that one of the circumstances "relevant to the exercise of the residual discretion include[s] delay in the hearing and determination of the appeal". But there was no evidence of any tardiness by the respondent in the prosecution of its appeal to the Court of Appeal. Significantly, the appellant's release on parole was not imminent when the Court of Appeal delivered its judgment on 22 August 2012. The fifth discretionary factor urged by the appellant was that his children will be affected by the delayed release of their father in circumstances where they have already lost their mother. This consideration was not advanced before the Court of Appeal. Given the circumstances in which the appellant's children lost their mother, that is perhaps unsurprising. It was not a consideration with any claim upon the discretion of the Court of Appeal. Conclusion and order The appellant's grounds of challenge to the decision of the Court of Appeal are not made out. The appeal should be dismissed.