CMB v Attorney General for New South Wales [2015] HCA 9

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ

CMB APPELLANT

AND

ATTORNEY GENERAL FOR NEW SOUTH WALES RESPONDENT

CMB v Attorney General for New South Wales [2015] HCA 9 11 March 2015 S257/2014

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 19 March 2014.

3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination.

On appeal from the Supreme Court of New South Wales

Representation

C T Loukas SC and G A Bashir SC with B C Dean for the appellant (instructed by Legal Aid NSW)

J V Agius SC with B K Baker for the respondent (instructed by Crown Solicitor (NSW))

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

CATCHWORDS

CMB v Attorney General for New South Wales

Criminal law – Sentencing – Sentence increased on prosecution appeal under s 5D of Criminal Appeal Act 1912 (NSW) – Appellant charged with sexual assault of daughter – Director of Public Prosecutions referred appellant for assessment for pre-trial diversion program – During assessment appellant disclosed further offences committed against daughter – First set of offences dealt with under program – Appellant charged with further offences and sentenced to good behaviour bonds with condition appellant complete program – Attorney General filed notice of appeal – Court of Criminal Appeal allowed appeal and re-sentenced appellant to five years and six months' imprisonment – Whether Court of Criminal Appeal erred in not exercising residual discretion to decline to interfere – Whether Court of Criminal Appeal erred in placing onus upon appellant with regard to exercise of residual discretion to dismiss appeal and limiting purpose of Crown appeals – Whether Court of Criminal Appeal erred in application of s 23 of Crimes (Sentencing Procedure) Act 1999 (NSW) and principles regarding voluntary disclosure of otherwise unknown guilt.