Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DK v Director of Public Prosecutions [2021] NSWCA 134 Hearing dates: 6 May 2021 Decision date: 02 July 2021 Before: Brereton JA at [1]; McCallum JA at [2]; Simpson AJA at [73] Decision: Summons dismissed Catchwords: APPEALS – Nature of appeal – Appeal by way of rehearing – Appeal against sentence brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review) Act – Whether Director required to establish error – whether the District Court has a "residual discretion" to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 33(1B) Conciliation and Arbitration Act 1904 (Cth), s 142 Crimes Act 1900 (NSW), s 61I Crimes (Appeal and Review) Act 2000 (NSW), ss 11, 17, 18, 23(1), 26, 27, 68A Criminal Appeal Act 1912 (NSW), s 5D Criminal Procedure Act 2009 (Vic), s 289(2) Justices Act 1902 (NSW), s 131AB, 131AC(3) Suitors Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), s 69 Supreme Court Act 1970 (NSW), s 75A Trade Practices Act 1974 (Cth), s 44F Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, Clarke v R [2015] 254 A Crim R 150; NSWCCA 232 CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9 DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 Dyason v Butterworth [2015] NSWCA 52 Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75 Hordern v R [2019] NSWCCA 138 Isaacs v Cachia [1989] NSWCA 105 Lacey v Attorney General of Queensland (2011) 242 CLR 573; [2011] HCA 10 Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 R v Hernando (2002) A Crim R 451; [2002] NSWCCA 489 R v Holder [1983] 3 NSWLR 245 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Liberti (1991) 55 A Crim R 120 R v Longshaw (1990) 20 NSWLR 554 R v Marcus [2016] NSWCCA 237 R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 Re Coldham; Ex Parte Municipal Officers Association of Australia (1989) 84 ALR 208; [1989] HCA 13 Tarrant v R [2007] NSWCCA 124 The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 Wany v Director of Public Prosecutions [2020] NSWCA 318 Texts Cited: Second Reading Speech, Legislative Assembly, New South Wales, Criminal Procedure Amendment (Justices and Local Courts) Bill 2001, Crimes (Local Courts Appeal and Review) Bill 2001, and Justices Legislation Repeal And Amendment Bill 2001, Parliamentary Debates (Hansard), 4 December 2001, 19427 at 19428. Category: Principal judgment Parties: DK (Applicant) Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: S Lawrence, J Styles (Applicant) D Kell SC, E S Jones (Respondent) Solicitors: Aboriginal Legal Service (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2021/75250 Publication restriction: The applicant was a child at the time the offence the subject of these proceedings was committed. His name has accordingly been anonymised so as to preserve the protection afforded by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Decision under review Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 December 2020 Before: McLennan DCJ File Number(s): 2019/3659 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] DK was found guilty after a hearing in the Children's Court of an offence of sexual intercourse without consent. The magistrate ordered that DK serve a period of juvenile detention for a period of 15 months but suspended the execution of that order and released DK upon his entering into a bond to be of good behaviour for the same period. The Director of Public Prosecutions appealed to the District Court under s 23(1) of the Crimes (Appeal and Review) Act 2000 (NSW) on the ground that the sentence was manifestly inadequate. The judge was persuaded that the sentence entailed a number of errors, including manifest inadequacy, and that the appeal should be allowed. Applying the "principle of restraint", his Honour did not increase the term of the detention order but declined to suspend its execution. His Honour fixed a non-parole period of eight months. DK sought judicial review of that decision. The application raised two principal issues: 1. Whether in a prosecution sentence appeal under s 23(1) of the Crimes (Appeal and Review) Act, the prosecution must establish error in order to enliven the Court's power under s 27 of the Act to vary the sentence. 2. Whether in a prosecution sentence appeal under s 23(1) of the Crimes (Appeal and Review) Act, the District Court has a "residual discretion" to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error, akin to the well-recognised discretion of the Court of Criminal Appeal in a Crown sentence appeal under s 5D of the Criminal Appeal Act 1912 (NSW). Held (by McCallum JA; Brereton JA and Simpson AJA agreeing), dismissing the summons: As to issue 1 The District Court's jurisdiction in a sentence appeal brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review) Act is error based: McCallum JA at [32], Brereton JA and Simpson AJA agreeing at [1] and [73]. As to issue 2 The District Court has a residual discretion to dismiss a sentence appeal brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review) Act notwithstanding the establishment of material error in the sentencing decision. The primary judge turned his mind to that issue in the present case: McCallum JA at [44] and [45], Brereton JA and Simpson AJA agreeing at [1] and [73]. Judgment 1. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by McCallum JA. I agree with her Honour's reasons and proposed orders. 2. McCALLUM JA: DK was found guilty after a hearing in the Children's Court of an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). At the time of the offence, he was 16 and the female complainant was 17. The magistrate ordered that DK be committed to the control of the Minister to serve a period of juvenile detention for a period of 15 months. However, his Honour suspended the execution of that order and released DK upon his entering into a good behaviour bond for the same period, as allowed under s 33(1B) of the Children (Criminal Proceedings) Act 1987 (NSW). The bond had no conditions other than the statutory requirement to be of good behaviour. 3. The Director of Public Prosecutions appealed to the District Court under s 23(1) of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal was determined by McLennan SC DCJ: Director of Public Prosecutions v DK (District Court (NSW), McLennan SC DCJ, 15 December 2020, unrep). His Honour was persuaded that the sentence entailed a number of errors, including manifest inadequacy, and that the appeal should be allowed. Upon resentencing, applying the "principle of restraint", his Honour did not increase the term of the control order even though he would have imposed a longer term had he been sentencing at first instance. Instead, his Honour gave effect to his conclusion by not suspending the execution of the order as the magistrate had. His Honour ordered that DK be committed to the control of the Minister for a period of 15 months with a non-parole period of eight months. 4. In these proceedings, DK seeks relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW) in respect of that decision. The principal issue raised by the application is whether, in the determination of an appeal against sentence brought by the Director under s 23(1) of the Crimes (Appeal and Review) Act, the District Court has a "residual discretion" to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error, akin to the well-recognised discretion of the Court of Criminal Appeal in a Crown sentence appeal under s 5D of the Criminal Appeal Act 1912 (NSW). If the answer to that question is "yes", a further issue raised by the application is whether the primary judge failed to exercise that discretion in the present case. 5. The parties also addressed a third issue, namely, whether in such an appeal the prosecution must establish error in order to enliven the Court's power under s 27 of the Crimes (Appeal and Review) Act to vary the sentence. That question does not arise on the facts of the present case because the primary judge was satisfied that error was established and the grounds for review in this Court do not seek to impugn that conclusion. However, although the Director accepted before the primary judge that he had to establish error, in this Court the Director submitted that the District Court's jurisdiction is not error based. The asserted absence of any requirement to establish error was in turn said to inform the question as to the existence of a residual discretion under s 23 to dismiss an appeal. Specifically, the Director submitted that it makes no sense to speak of a residual discretion to dismiss an appeal "notwithstanding error" if error is not required and the Court's task is instead to exercise the sentencing discretion afresh. It is convenient to address that issue first. Requirement for the Director to show error 1. As just noted, the Director did not contend before the primary judge that there was no requirement to show error. The written submissions implicitly assumed that there was such a requirement and addressed it by arguing that the sentence was manifestly inadequate. The primary judge confirmed at the outset of oral submissions that this was the Director's position. 2. In the course of that exchange, his Honour referred to the judgment of McColl JA in Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 where her Honour reached the unexceptionable conclusion that all appeals under the Crimes (Appeal and Review) Act are not the same. Although each subdivision in the Act concerned with the hearing and determination of appeals specifies that the appeal in question is to be "by way of rehearing", her Honour observed that the rights of appeal created by those provisions are governed by different constraints as to evidence. Primarily on that basis, her Honour concluded that they create different kinds of appeal. In reaching that conclusion, her Honour had regard to the orthodox understanding that an "appeal" is not a common law procedure but a creature of statute: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 124 [20] and that the meaning of the term "appeal" in any given provision "depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be": Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at 40-41 [130] (McHugh J). 3. The appeal in Engelbrecht was concerned with the nature of a sentence appeal brought by a defendant from the Local Court to the District Court under s 17 of the Crimes (Appeal and Review) Act. McColl JA had previously considered the nature of a conviction appeal under s 18(1) of the Act in Dyason v Butterworth [2015] NSWCA 52. In that case, her Honour concluded that such an appeal is not an appeal de novo but a rehearing requiring an approach analogous to that taken to a civil appeal under s 75A of the Supreme Court Act 1970 (NSW). Her Honour further concluded that appeals under s 18(1) require the demonstration of legal, factual or discretionary error "in which event the appellate court can substitute its own decision based on the facts and law as they then stand": Dyason at [27]-[28] (Barrett and Gleeson JJA agreeing at [83] and [84]), applying Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at 180, [23] per Gaudron, McHugh, Gummow and Hayne JJ. 4. In Engelbrecht, McColl JA reached the conclusion at [92] that, by contrast, a sentence appeal brought by a defendant under s 17 of the Act is: "a hearing de novo requiring the sentence proceedings consequent upon the conviction to be heard afresh…on such an appeal, the Court exercises original jurisdiction and the sentence is that of the District Court judge and must represent his or her "view of the matter", not whether the Magistrate's view was appropriate". 1. It is in that juridical context that the Director now submits (contrary to what was conceded before the primary judge) that a prosecution appeal against sentence under s 23(1) of the Act equally requires the District Court to exercise the sentencing discretion afresh without the need for the Director to establish error in the sentencing decision of the magistrate. The Director submitted that, if the establishment of error were a precondition to the exercise of the District Court's power to determine a prosecution sentence appeal, that would see prosecution appeals against sentence under s 23(1) dealt with differently from offender appeals against sentence under s 17. The Director submitted this would be "an undesirable outcome". That is contestable but, in any event, answers the wrong question. The two kinds of appeal are to be dealt with differently if the statute says so. It is by no means obvious to me that they should be dealt with in the same way but, in any event, the desirability of either outcome is a matter for parliament. 2. As already noted, probably the critical factor in McColl JA's analysis in Engelbrecht of the nature of a defendant's sentence appeal under s 17 was the entitlement to adduce fresh evidence in the appeal proceedings. The Crimes (Appeal and Review) Act creates an appeal to the District Court as of right against a sentence imposed by the Local Court for both defendants and prosecutors: ss 11, 23. Each is directed to be by way of rehearing: ss 17, 26. However, there is a difference as to the entitlement to adduce fresh evidence. Section 17, dealing with appeals against sentence by a defendant, confers an unqualified right to adduce fresh evidence: 17 Appeals against sentence to be by way of rehearing of evidence An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings. 1. By contrast s 26, dealing with appeals against sentence by the Director, imposes a requirement for leave to adduce fresh evidence. Importantly, the section differentiates between the defendant and the Director in the entitlement to obtain leave, requiring the Director to establish exceptional circumstances warranting the admission of fresh evidence whereas there is no such requirement for a defendant, only the bare requirement for leave: 26 Appeals against sentence to be by way of rehearing of evidence (1) An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the District Court. (2) Leave to give fresh evidence may be granted to the Director of Public Prosecutions only in exceptional circumstances. 1. There is accordingly a clear indication in the statute that defendants' sentence appeals are different in nature from both defendants' conviction appeals and prosecution sentence appeals. Only defendants' sentence appeals are attended by an unqualified right to adduce fresh evidence, which McColl JA in Engelbrecht considered to be emblematic of a requirement to exercise the sentencing discretion afresh. 2. The Director submitted, however, that her Honour's analysis meets "the difficulty" that the Court of Appeal reached a different conclusion in R v Longshaw (1990) 20 NSWLR 554 in respect of the predecessor provision to s 23 of the Crimes (Appeal and Review) Act. Specifically, the Court in that case did not regard the restriction on evidence as a factor indicating that prosecution appeals were error-based. 3. Longshaw was a case stated by a judge of the District Court, Cooper DCJ, shortly after the introduction of amendments to the Justices Act 1902 (NSW). The judge sought determination of an issue by the Court of Criminal Appeal because different opinions had evidently emerged among judges of the District Court as to the nature of the prosecution appeal against sentence provided for by those amendments. The new s 131AB provided: 131AB Appeal by Crown to District Court against sentence (1) The Director of Public Prosecutions may appeal to the District Court against any sentence imposed by a Justice or Justices in — (a) proceedings for an indictable offence being dealt with summarily in a Local Court; or (b) proceedings for a prescribed summary offence (as defined in the Director of Public Prosecutions Act 1986); or (c) proceedings for any other summary offence if instituted or carried on by the Director of Public Prosecutions. (2) The District Court may, in its discretion, do any one or more of the following: (a) confirm, quash, set aside or vary the sentence; (b) impose such sentence as may seem proper to the District Court; (c) exercise, by order, any power which such a Justice or Justices might have exercised. (3) Any such sentence varied or imposed by the District Court, or any such order made by the District Court, shall have the same effect and be enforced in the same manner as if it had been imposed or made by such a Justice or Justices. (4) The District Court may not — (a) vary a sentence so that the sentence as varied could not have been imposed by the Justice or Justices concerned; or (b) impose a sentence that could not have been imposed by the Justice or Justices concerned. 1. Section 131AC(3) was to the same effect as s 26 of the Crimes (Appeal and Review) Act, providing: On an appeal [under s 131AB], new evidence or information may be given with the leave of the District Court, but may only be given by the prosecution in exceptional circumstances. 1. The Court of Criminal Appeal held that Cooper DCJ was correct to hold that, in an appeal under those provisions, the District Court judge was "called upon to exercise his own discretion and to consider what he/she considers proper and [was] not limited to a review of the magistrate's sentences and orders to determine whether the magistrate erred in law." 2. The Director's submissions in the present case relied in particular on a passage from the judgment of Gleeson CJ (with whom Wood and Badgery-Parker JJ agreed) at 563 where his Honour expressed the view that the legislative scheme contained in ss 131AB and 131AC "has much more in common with Div 4 of Pt 5 of the Justices Act [which provided for an appeal de novo by a defendant] than with s 5D of the Criminal Appeal Act." Gleeson CJ observed, "having regard to the context, this is hardly surprising". 3. The context to which his Honour referred was the history of the New South Wales magistracy, understood in the context of centuries of English history. The judgment in Longshaw contains a detailed and interesting account of the circumstances in which, historically, the functions now carried out by magistrates were previously assigned to persons who were not legally qualified and who did not enjoy judicial independence. It was in those circumstances that the practice of appeals from Petty Sessions to Quarter Sessions involving hearings de novo developed, presumably at least in part in recognition of the fact that the sentencing function in Petty Sessions was being performed by people who were not legally trained. 4. Much has changed since Longshaw. Importantly, the scheme for sentence appeals brought by the prosecution under the Justices Act, which Gleeson CJ considered had more in common with sentence appeals by defendants under the same Act than with appeals to the Court of Criminal Appeal under s 5D of the Criminal Appeal Act, made no provision for the District Court to dismiss an appeal: see s 131AB(2)(a) set out above. In Longshaw at 563, Gleeson CJ observed that that provision "appears to contemplate that the District Court judge, in the event that the appeal fails, will confirm the sentence rather than simply dismiss the appeal." That was clearly a factor in his Honour's reasoning that the task for the judge in a prosecution appeal from the Local Court to the District Court was to exercise the sentencing discretion afresh regardless of error. 5. In contrast, s 27(1) of the Crimes (Appeal and Review) Act allows the District Court simply to dismiss an appeal by the Director under s 23. Section 27 provides: 27 Determination of appeals (1) The District Court may determine an appeal against sentence-- (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal… 1. On the reasoning of Gleeson CJ in Longshaw, that is a factor that points in favour of a requirement for error in a prosecution appeal. Further, the historical context on which Gleeson CJ placed some reliance can no longer be seen to inform the nature of appeals from the Local Court in the manner found in respect of the Justices Act. In the 2001 second reading speech for the package of reforms that included what is now the Crimes (Appeal and Review) Act, the Attorney General, the Hon Robert Debus, noted that the Justices Act, then almost a century old, "focused on the role of Justices of the Peace sitting in police courts, a system that bears no resemblance to the present arrangement of magistrates sitting alone…": Second Reading Speech, Legislative Assembly, New South Wales, Criminal Procedure Amendment (Justices and Local Courts) Bill 2001, Crimes (Local Courts Appeal and Review) Bill 2001, and Justices Legislation Repeal And Amendment Bill 2001, Parliamentary Debates (Hansard), 4 December 2001, 19427 at 19428. Magistrates are now legally qualified, highly trained and rightly recognised as judicial officers. 2. In any event, the significant factor is the terms of the legislation itself, which plainly differentiates between the three different kinds of appeal considered above and authorises the District Court to dismiss an appeal whereas previously the court was required, if nothing else, to "confirm" the sentence. I am not persuaded that the reasoning in Longshaw concerning ss 131AB and 131AC of the Justices Act undermines the reasoning of McColl JA in Engelbrecht concerning the nature of a defendant's sentence appeal under s 17 of the Crimes (Appeal and Review) Act and, in particular, the significance of the unqualified right to adduce fresh evidence in such appeals. 3. Separately, the Director relied on the fact that the term "varying the sentence" used in s 27 of the Crimes (Appeal and Review) Act is defined in s 3(3) of the Act to include power to impose "some other sentence of a more or less severe nature". He submitted that the fact that the District Court could impose a more or less severe sentence on an appeal brought by the Director under s 23(1) suggests that the Court is engaging in a fresh sentencing exercise. But the position is relevantly the same under s 5D of the Criminal Appeal Act ("the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper") and yet it is well established that that Court's jurisdiction is error based. As intriguing as it is to entertain a submission by the Director that an appeal against leniency could properly be determined by the imposition of an even more lenient sentence, I do not think that is determinative as to the nature of the appeal save that it makes plain that it is not an appeal in the strict sense, which is clear from the terms of the statute in any event. 4. The Director also relied on my remarks in Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 at [27]-[28] (Meagher JA and Simpson AJA relevantly agreeing). In particular, he relied on the fact that I explained the difference between a rehearing under s 17 (defendants' appeals against sentence) and s 18 (defendants' appeals against conviction) by reference to the nature of the sentencing task. But it does not follow that sentence appeals by a defendant are the same as sentence appeals by the Director. 5. Four kinds of appeal are commonly identified but it is recognised that the taxonomy is organic. In Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at 40 [130], McHugh J stated that the term "appeal" has been recognised to have at least four different meanings: "It may mean an appeal in the true sense, an appeal by re-hearing on the evidence before the trial court, an appeal by way of re-hearing on the evidence before the trial court and such further evidence as the appellate court admits pursuant to a statutory power to do so, and an appeal by way of a hearing de novo." 1. The High Court later observed in Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 at 128 [2] that the categories of appeal are not closed and noted that particular legislative measures "may use the term 'appeal' to identify a wholly novel procedure or one which is a variant of one or more of [the four identified above]." 2. Two considerations in particular have persuaded me that an appeal to the District Court brought by the Director under s 23 of the Crimes (Appeal and Review) Act against the sentence imposed on a defendant in the Local Court requires the establishment of error before the District Court's power to vary the sentence is enlivened. One is the fact that, in an appeal by a defendant, the parties have an unqualified right to adduce fresh evidence whereas, in an appeal by the Director, the parties require leave and the Director's entitlement to leave is confined to a case in which there are exceptional circumstances. While those constraints are not necessarily inconsistent with the proposition that the task for the court on an appeal by the Director is to exercise the sentencing discretion afresh, they do point against that construction of the legislation. 3. The more fundamental consideration is the common law's antagonism to the injustice or unfairness that can flow from a second sentencing exercise. It is well-recognised in the authorities that a successful Crown appeal can visit injustice or unfairness on an offender, even where the sentence at first instance was erroneously lenient. 4. As fairly acknowledged by the Crown, the principles stated by the High Court on this issue in Lacey v Attorney General of Queensland (2011) 242 CLR 573; [2011] HCA 10 support the construction contended for by DK. The Court noted at 583-4 [20] the requirement for clear language to create a Crown appeal against sentence that did not require the demonstration of error: "In construing a statute which provides for a Crown appeal against sentence, common law principles of interpretation would not, unless clear language required it, prefer a construction which provides for an increase of the sentence without the need to show error by the primary judge. That is a specific application of the principle of legality. It is reflected in, and reinforced by, the decisions of this Court. Such a construction also has the vice that it deprives the sentencing judge's order of substantive finality. It effectively confers a discretion on the Attorney-General to seek a different sentence from the Court of Appeal without the constraint of any threshold criterion for that Court's intervention. Such a construction tips the scales of criminal justice in a way that offends "deep-rooted notions of fairness and decency". It is not therefore a construction lightly to be taken as reflecting the intention of the legislature." 1. In the statute under consideration here, there is no clear language requiring a construction which provides for an increase of the sentence without the need to show error by the magistrate. As already explained, there is at least some indication to the contrary. Further, the construction contended for by the Director, based as it was on the untested premise that it would be undesirable to treat Crown appeals differently from offender appeals, overlooks the long-recognised "exceptional character of the Crown appeal against sentence": Lacey at 581 [16]. 2. For those reasons, in my view the issues raised by the appeal should be determined on the premise that the District Court's jurisdiction under s 23 of the Crimes (Appeal and Review) Act is error based. Whether there is a residual discretion under s 23 1. DK's argument in support of the existence of a residual discretion to dismiss an appeal under s 23 of the Crimes (Appeal and Review) Act notwithstanding a finding of error in the sentencing decision was simple. He noted that it is uncontroversial that the Court of Criminal Appeal has a residual discretion to dismiss a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) and submitted that the District Court's jurisdiction under s 23 is not "meaningfully different" from that aspect of the jurisdiction of the Court of Criminal Appeal. 2. DK acknowledged that there are some differences between the two kinds of appeal. In particular, as already noted, it is enough in an appeal to the District Court to show "legal, factual or discretionary error" (Allesch v Maunz at [23]) whereas the prevailing view is that appeals to the Court of Criminal Appeal require House v The King error: CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 at 365 [54]. 3. I note that the latter proposition has been doubted: see Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232 at [32]-[36] (Basten JA), [129]-[136] (Hamill J); Hordern v R (2019) 278 A Crim R 353; [2019] NSWCCA 138 at [20] (Basten JA), [82] (Hamill J) where their Honours expressed the view that the "constrained approach" in appeals to the Court of Criminal Appeal (the requirement for House v The King error as it is currently understood) is clearly wrong and should not be followed. In Hordern at [20], Basten JA explained his conclusion (which Hamill J specifically endorsed) with the following persuasive observation: "In circumstances where the liberty of the individual is at stake, there is no reason to deliberately perpetuate error, once identified. The administration of criminal justice does not require this Court to conclude that an offender must serve a longer sentence than would have been imposed, absent a factual error by the sentencing judge." 1. In any event, returning to the matter at hand, the Director submitted that the difference in the case of appeals to the Court of Criminal Appeal is the terms in which the power is conferred. Section 5D(1) provides that "the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper". The Director emphasised the language in the decision of the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 471 [24] where the Court described the residual discretion as being "embedded" in the words "may in its discretion". But the fact that the discretion is embedded in those words does not mean it could not be found to exist without them. The term "may", unless it means "shall", is generally understood to authorise the court in which the relevant power is reposed not to grant the relief sought although it is enlivened. 2. The description of the power to take that course as a "residual discretion" is not exclusive to the jurisprudence of Crown appeals against sentence. The term "residual discretion" is commonly used to describe a discretion to decline the relief sought notwithstanding the satisfaction of its terms of engagement. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, it was used to refer to a discretion to refuse to extend a limitation period notwithstanding the fact that the two conditions of the relevant provision were satisfied. In Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36, it was used to refer to a discretion not to declare services relating to railway lines in the Pilbara pursuant to s 44F of the Trade Practices Act 1974 (Cth) notwithstanding satisfaction of the conditions for granting such services. In Re Coldham; Ex Parte Municipal Officers Association of Australia(1989) 84 ALR 208; [1989] HCA 13 it was used to refer to the discretion of the Industrial Registrar of the Conciliation and Arbitration Commission to refuse to register an association as an organisation under s 142 of the Conciliation and Arbitration Act 1904 (Cth) even if the express basis on which he was required to refuse to do so was not satisfied. It has been used to refer to a discretion to deny the grant of a certificate under the Suitors Fund Act 1951 (NSW) notwithstanding satisfaction of the conditions authorising the grant of such a certificate: Isaacs v Cachia [1989] NSWCA 105. It has been used to refer to a discretion to exclude admissible evidence: R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 (in that case, Kirby J attributed the use of the term to the majority in the decision of the High Court in Foster v The Queen (1993) 67 ALJR 550; [1980] HCA 80 but in fact the term used in Foster was "independent discretions"). Other examples exist. In short, it is far from clear that the residual discretion recognised to exist under s 5D of the Criminal Appeal Act arises only as a result of the inclusion of the words "in its discretion" in that section. 3. The residual discretion under s 5D of the Criminal Appeal Act reflects a recognition that fairness is an institutional requirement of the criminal justice system. In R v Holder [1983] 3 NSWLR 245 at 255 it was explained by Street CJ in the following terms: "An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision." 1. The kind of unfairness or injustice that might warrant the exercise of the residual discretion in a Crown appeal under s 5D includes delay on the part of the Crown, cases where the sentencing judge's error was caused or contributed to by the Crown or where the Crown has attempted to conduct an appeal on a basis different from that advanced before the sentencing judge, cases where an offender has completed serving the sentence by the time of the appeal and would have to be returned to custody in the event of a successful appeal and cases where to allow the appeal would interfere with a positive case of rehabilitation or, as in Green and Quinn, create disparity. Those kinds of considerations apply no less in the case of an appeal by the Director under s 23 of the Crimes (Appeal and Review) Act. The different wording of the section does not cure any potential unfairness or injustice in the appeal process. 2. The strongest textual indication that the District Court has a residual discretion to dismiss a prosecution appeal against sentence under s 23(1) of the Crimes (Appeal and Review) Act is the fact that the existence of such a discretion was assumed as the premise of an amendment to the Act in 2009. Section 68A of the Act, which was introduced by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW), provides: 68A Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not-- (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal." 1. The operation of that provision was considered by the Court of Criminal Appeal in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49. The Court held that double jeopardy was only one example of the kind of injustice or unfairness referred to in R v Holder and that there remained some work for the residual discretion following the introduction of s 68A. In the judgment of the plurality in Green v The Queen; Quinn v The Queen at 471-472 [26], while faintly hinting that the decision in JW may warrant reconsideration, their Honours strongly affirmed the conclusion that the operation of s 68A does not extinguish the residual discretion. 2. While both parties' submissions referred to s 68A, it did not feature heavily in the argument concerning the existence of a residual discretion. Upon reflection, the section clearly contemplates that every criminal appeal court (including the Court of Criminal Appeal) has a discretion to dismiss a prosecution appeal against sentence, the scope of which is qualified by the section. In my view, that is fatal to the Director's contention that there is no such discretion. 3. My conclusion on that issue is fortified by the terms of s 27 of the Crimes (Appeal and Review) Act which, in my view, is properly construed as a provision that confers a residual discretion to dismiss an appeal even where the power to set aside or vary the sentence is enlivened. 4. For those reasons, I am satisfied that, in an appeal against sentence brought by the Director under s 23 of the Crimes (Appeal and Review) Act, the District Court has a residual discretion to dismiss the appeal notwithstanding the establishment of material error in the sentencing decision. Whether the residual discretion was exercised in the present case 1. I am further satisfied that the primary judge turned his mind to the question of the residual discretion in the present case. My conclusion on that issue is based on a close consideration of the course the appeal took before the primary judge, which has persuaded me that, rather than overlooking the requirement to determine whether there was a residual discretion, his Honour ascertained that it was common ground that there was, and made a choice not to exercise that discretion but instead to exercise restraint in resentencing DK. 2. I have taken the course of relying on the transcript of argument because I am satisfied, as contended by the Director, that this is a case in which it is appropriate to have regard to those exchanges in accordance with the decision of this Court in Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75 at [4] (Basten JA), [29] (Macfarlan JA). Macfarlan JA said at [29]: "Recourse to the transcript is permissible at least in a case 'where an ex tempore judgment is given in brief terms immediately following submissions in which it is apparent that the judge is relying upon an understanding reached in the course of submissions' (You, Jae Bok v R [2020] NSWCCA 71 at [20] per Basten JA)." 1. In the present case, as I will explain, it is clear from the transcript that the judge reached an understanding during the course of submissions that there was no contest as to DK's primary contentions concerning the requirement to demonstrate error and the existence of a residual discretion. 2. Both parties provided written submissions to his Honour. DK's submissions opened with the contention that appeals by the prosecution under s 23 of the Crimes (Appeal and Review) Act are not materially different from appeals by the Crown under s 5D of the Criminal Appeals Act. It was contended on that basis that, as in an appeal under s 5D, the prosecution faced two hurdles in its appeal against DK: 1. demonstration of error in the decision of the magistrate; and 2. the need to persuade the Court that the residual discretion ought not be exercised. 1. The Director's written submissions did not dispute or even engage with either proposition. Instead, the submissions implicitly accepted both that error had to be established and that the Court had a residual discretion to dismiss the appeal. Acknowledgment of the existence of a residual discretion was implicit in the following paragraphs of the Director's written submissions, which appeared under the heading "Relevance of Crown Appeal": It is acknowledged that a Crown appeal has the effect of prolonging the legal process for an offender. In the present case, the appeal was filed in a timely manner (particularly considering the matter was not originally prosecuted by the Director). The Crown submits that there has not been undue delay, nor are the Crown submissions directed towards mere 'tinkering' of the original sentence, such that the Court might exercise its discretion not to intervene. 1. It is informative to consider the content of the submissions on that issue put before the primary judge by DK. The submissions noted that the residual discretion empowers the court to dismiss a Crown appeal notwithstanding that the sentence under appeal is erroneously lenient: citing Green v The Queen at 465 [1], 478 [38]. It was then contended that the residual discretion is not derived from the statutory language of s 5D of the Criminal Appeals Act but is of long standing. In support of that point, DK quoted a lengthy passage from the decision of the Victorian Court of Appeal in DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [50]. In that case, the Court convened a bench of five to consider the breadth of the residual discretion in a Crown sentence appeal following the introduction in Victoria of an amendment similar to that introduced in New South Wales in 2009. Section 289(2) of the Criminal Procedure Act 2009 (Vic), like s 68A of the Crimes (Appeal and Review) Act, prohibited the Court from taking into account "any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed". DK relied on the following passage in the joint judgment of Ashley, Redlich and Weinberg JJA at [50] (Warren CJ and Maxwell P agreeing): "Conceptually, a Crown appeal has traditionally given rise to three separate questions which, for convenience, can be described as 'stages'. First, the Court considered the nature of the sentencing error in order to determine whether it satisfied the common law requirements, summarised in Clarke and Bright, which were intended to ensure that such appeals should be 'rare and exceptional', and did not unduly circumscribe the sentencing discretion. Secondly, even if the error met those requirements, the Court would consider whether, for reasons of principle or because of discretionary considerations, it should decline to intervene because it did not consider that a different sentence should be imposed. For example, the Court would exercise what it regarded as an overriding, or residual, discretion not to intervene where it did not consider that there was a sufficient difference between the sentence imposed at first instance, and any sentence it regarded as appropriate. Thirdly, if the Court did intervene, because it was a Crown appeal the Court would impose a lesser sentence than it would otherwise have imposed, which was generally toward the lower end of the appropriate range." (citations omitted) 1. Finally on this point, DK submitted that the wider purpose of Crown appeals is to achieve consistency and to establish principles of sentencing. He submitted on that basis that the discretion to dismiss a Crown appeal may be exercised notwithstanding a finding that the sentence under appeal is erroneously lenient. 2. The submissions as to the law were accordingly comprehensive and persuasive. However, they did not address any particular factual circumstance relating to DK of relevance to the residual discretion. Only one factual submission addressed to the point was made and that was framed in general terms: "One such factor bearing consideration whether to decline to intervene would include whether another resentence would impede the rehabilitation of the offender." 1. There was no basis for the primary judge to link that generic submission with the case before him because DK did not seek leave to adduce evidence on the issue of rehabilitation or indeed any evidence to be relied upon in the event that the Court reached the point of considering the residual discretion. Such evidence is commonly adduced in sentence appeals in the Court of Criminal Appeal. Appeals under s 23 are different in that there is a requirement for leave; I am simply observing that there was no specific factual submission and no fresh evidence for the Court to consider on the question of the residual discretion. 2. In making that observation, I am not overlooking the fact that, in accordance with the principles stated by the High Court in CMB, there was no onus on DK to demonstrate that the prosecution appeal should be dismissed. The High Court in that case at [66] affirmed the correctness of the principle stated by Heydon JA in R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 where at [60] his Honour summarised the Court of Criminal Appeal's approach to the disposition of prosecution appeals against sentence as follows: "[I]f this Court is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised." 1. In the present case, the material before the primary judge did not identify any reason why the residual discretion not to interfere should be exercised. 2. After receiving the evidence and the written submissions, the primary judge took a short adjournment during which it is apparent his Honour read that material. When the hearing resumed, the primary judge asked the Crown a number of questions plainly directed to the content of DK's written submissions. First, his Honour asked whether error was required to be established as a precondition for appellate intervention (the contention made at par 1(1) of DK's submissions). As already noted, his Honour's question was framed by reference to the decision of the Court of Appeal in Engelbrecht. Counsel for the Director agreed that it was necessary to establish error and confirmed that the prosecution case was that the sentence was inadequate such as to amount to latent error. 3. The primary judge then turned to the topic of the "principle of restraint". It is apparent from the exchange that followed that his Honour understood that principle to comprehend the notion of a residual discretion: "HIS HONOUR: All right. Let me move onto a different point for a moment. Do you accept that in the outcome, that the principle of restraint operates in this Crown appeal, under this Act? COXON: Is your Honour referring to the principles regarding the circumstances in which a court would intervene and– HIS HONOUR: Even if error is established. COXON: Yes your Honour, yes. HIS HONOUR: Because that seems to be almost implicit in the submissions that you make in 42, 43 and 44 of your outline, where you address the time limits of the filing of the appeal. That's a consideration that would be relevant, if this were a Crown appeal, in the Court of Criminal Appeal and the Court was looking to determine whether or not it would exercise a residual discretion to allow the appeal, even if error were established. That's one form of restraint, the exercise of the residual discretion. The other form of restraint is that, even assuming that I accept the arguments and the appeal is allowed, as to the actual order that was made by the magistrate, there are two levels at which restraint might operate here. One is in determining whether or not 15 months, as a control order, was adequate, as opposed to something more and secondly, as regards to the issue of whether or not the young person is registrable or not. COXON: Yes your Honour and further to that, your Honour, whether or not a conviction ought to have been recorded." 1. That exchange is to be understood in the context that DK had submitted that there was a residual discretion akin to that arising under s 5D of the Criminal Appeal Act. The Crown had not disagreed with that submission and in fact had pointed to matters that were only relevant on the assumption that it was correct (see written submissions set out above at [49]). The judge had just come back onto the bench having read all of that material. It is clear in my view that the judge was pressing counsel for the prosecution as to her position by reference to the contents of DK's written submissions. In that context, it is significant that the primary judge noted that the considerations specified in the prosecutor's written submissions were relevant to "a residual discretion to allow the appeal, even if error were established". 2. Separately, it is apparent from that exchange that the primary judge understood the residual discretion to dismiss an appeal notwithstanding error as an aspect of the principle of restraint ("that's one form of restraint, the exercise of the residual discretion"). His Honour understood the "other form of restraint" to be a requirement to exercise restraint in determining the appropriate sentence if the appeal was not dismissed. 3. The primary judge's characterisation of the residual discretion as an aspect of the principle of restraint was not wrong. That principle is not confined in its application to the circumstances of a Crown appeal against sentence. In R v Liberti (1991) 55 A Crim R 120, the term "principles of restraint" was used by Kirby P at 121- 122 to describe the caution with which courts approach "attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea". His Honour explained at 122: "This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence..." See also Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158. 1. In R v Marcus [2016] NSWCCA 237, an argument was put that the principle of restraint applies in the case of a detention application by the Crown in the Court of Criminal Appeal following a grant of bail by the Supreme Court. The Court rejected the submission at [22]-[30] (Hoeben CJ at CL; RA Hulme J and Wilson J agreeing at [41]-[42]). It may be noted that an aspect of the Court's reasoning in that case was the fact that the respondent relied upon the "double jeopardy" faced by an accused person in respect of a detention application. The Court held at [29] that the contention was based on an historical legal notion that no longer exists, as the "double jeopardy" principle in this Court's determination of Crown appeals against sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) was abolished with the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) in 2009. With respect, that conclusion rests on a misapprehension as to the full scope of the principle of restraint in the context of Crown appeals. As already explained, that principle extends to factors beyond the issue of double jeopardy. 2. Thirdly, the principle of restraint has been considered in the context of an application for leave to appeal against sentence in the case of an offender sentenced after retrial to a heavier sentence than the sentence passed at the first trial: Tarrant v R (2007) 171 A Crim R 425; [2007] NSWCCA 124. 3. The primary judge's exchanges with the prosecutor indicate that his Honour understood it to be common ground that there were three issues he had to determine: whether error was established; if so, whether the Court would exercise the residual discretion to allow the appeal even if error were established; and, if not, what sentence to impose. The judge then had a further exchange with the prosecutor in effect putting to her the sentence he had in mind and giving her an opportunity to make any further submissions. 4. The primary judge then effectively put the same matters to counsel for DK. Having indicated that he was satisfied error had been established, his Honour asked counsel: "So why shouldn't I resentence your client and why shouldn't he be sentenced to fifteen months care and control, with a non-parole period of eight months?" 1. Counsel responded that his submissions were outlined in the material that had been forwarded to the Court. 2. In my view, it is permissible and appropriate in the circumstances of this case to have regard to those exchanges in order to understand the brief terms in which the primary judge expressed his ultimate findings. His Honour said: "I am persuaded that there has been error, I am persuaded that the sentence is manifestly inadequate and I am persuaded that I should allow the appeal, as far as the nature of the order that was imposed in this particular case is concerned." [emphasis added] 1. In my assessment, the underlined words are plainly directed to recording a decision not to exercise the residual discretion, the existence of which was common ground but as to the exercise of which the material before the primary judge was silent. When asked, counsel for DK had not nominated any specific reason for the exercise of the discretion; there was accordingly nothing specific for the prosecutor to negate in accordance with the principles stated in Hernandez. 2. DK submitted that the primary judge only considered the principle of restraint at the second stage (in determining the appropriate sentence) and failed first to consider whether to dismiss the appeal. That was said to be reflected in the following remarks in the sentencing judgment: Having said all of that, there are two things which are appropriate. First of all, there is the principle of restraint, so that the term of the control order will not be increased from 15 months, although if I had been sentencing the respondent in first instance in the Children's Court for this offence, I would have given him 18 months, with a non-parole period of 12. However, what I propose to do is to strike what is the necessary balance between the need to properly punish, the need to acknowledge the harm done to the victim and the need to attempt to rehabilitate the respondent. That will result in my not altering the head sentence of a 15 months control order but it will result in my sentencing him to a non-parole period of eight months imprisonment but with the balance of the seven months to be on parole." 1. However, his Honour had already said that he was persuaded he should allow the appeal which, as was common ground, is a separate question from the question of error. I am not persuaded that the primary judge "failed to determine the residual discretion", as contended by ground 1. Denial of procedural fairness 1. The summons specified a second ground for review contending that the primary judge: "denied the plaintiff procedural fairness in failing to give reasons for rejecting the argument put by the plaintiff that the appeal was subject to a residual discretion". 1. It will be clear from the foregoing discussion that, in my view, it is clear that the primary judge did not reject DK's argument that the appeal was subject to a residual discretion. 2. For those reasons, the summons must be dismissed. As DK was at the relevant time a child, although he has been unsuccessful in the proceedings, I do not think he should be ordered to pay the Director's costs. An additional reason for declining to make any order as to costs is the fact that the application raised a matter of general public importance as to which I have accepted DK's submissions. 3. SIMPSON AJA: I agree with McCallum JA. ********** Amendments 29 October 2021 - change in solicitor counsel details 17 November 2021 - Grammatical and referencing edits (further inclusions to references) made to pars: [3]; [22]; [34]; [37]; [57]; [60]; [61] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2021