Cumberland v The Queen [2020] HCA 21

HIGH COURT OF AUSTRALIA

BELL, GAGELER AND NETTLE JJ

JESSE CUMBERLAND APPELLANT

AND

THE QUEEN RESPONDENT

Cumberland v The Queen [2020] HCA 21 Date of Hearing: 15 April 2020 Date of Order: 15 April 2020 Date of Publication of Reasons: 3 June 2020 D23/2019

ORDER

1. Appeal allowed.

2. The orders of the Court of Criminal Appeal of the Supreme Court of the Northern Territory made on 19 June 2019 are set aside and in lieu thereof it is ordered that the appeal to the Court of Criminal Appeal is dismissed.

On appeal from the Supreme Court of the Northern Territory

Representation

M E Shaw QC with S A McDonald and M W Thomas for the appellant (instructed by Peter McQueen, Solicitor)

M W Nathan SC for the respondent (instructed by Director of Public Prosecutions (NT))

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

CATCHWORDS

Cumberland v The Queen

Criminal practice – Appeal – Crown appeal against sentence – Where appellant sentenced on pleas of guilty to six offences arising out of course of commercial dealing in cannabis plant material and MDMA – Where prosecution appealed against sentence on ground of manifest inadequacy – Where three-member Bench of Court of Criminal Appeal ("CCA") heard appeal and announced intention to allow appeal but referred relevant question of statutory construction to five‑member Bench – Where eleven months after initial hearing, CCA delivered judgment of five-member Bench, then immediately re-constituted to deliver judgment of three-member Bench, allowing appeal and re-sentencing to increased term of imprisonment – Where appellant not given opportunity to place material before CCA as to progress in custody, nor make submissions on re-sentence or dismissal of appeal in exercise of "residual discretion" – Whether CCA failed to accord appellant procedural fairness in conduct of hearing of appeal against sentence – Whether CCA erred in determining to allow appeal against sentence when all circumstances relevant to exercise of "residual discretion" not yet known – Whether matter should be remitted to CCA for re-sentencing of appellant.