The Crown Appeals Virus: Prevention and Cure

By Chris Craigie SC

Deputy Senior Public Defender

The Prevalence of Crown Appeals

As I noted in another paper two years ago, Crown appeals against sentence have become something of a virus, increasing at an extraordinary rate over the last several years. Reference to a relatively recent academic study of the phenomenon is instructive and confirms one's own impressions: The Judicial Commission's statistics reveal that there were 283 Crown Appeals between 1996 and 2000. Between 1996 and 1999 the annual rate of Crown appeals in state matters ranged between 48 and 56. In 2000 there was a substantial increase to 84. Up to that point the success rate of Crown appeals had been fairly high, around 60%. The apparent boom in Crown appeals has continued but with a corresponding fall in the Crown's success rate. This was down to 47% in 2002-03. There were 84 Crown Appeals in 2002 and 98 in 2003-04. The analysis of the reasons for dismissal of the 42 appeals dismissed in 2002-03 is interesting. The sentence was found not to be manifestly inadequate in 30 cases with the Court exercising its discretion to dismiss, notwithstanding manifest inadequacy in the remaining 12 matters This statistical analysis was the subject of an article, Crown Appeals in NSW by Lorana Bartels (2003) Butterworth's 12 Criminal Law News. . I have not seen more recent figures suspect, from painful experience that this trend of more appeals has continued, although the success rate may well have improved slightly.

Principles Relating to Crown Appeals on Sentence

The concept of Crown appeals is relatively recent in historical terms, being quite alien to the common law. The Crown's appellate remedy arises from a statutory departure from formerly entrenched doctrines of finality created by the insertion in 1924 of s.5D in the Criminal Appeal Act 1912 For a convenient and accessible summary of guiding principles see also Wood CJ in CL in R v Wall [2002] NSWCCA 42 and R v Prasad (2004)147 a Crim. R 385 at [27].

It is to be noted that the Crown is limited to appeal upon the basis of the same error principle that applies to an applicant-appellant seeking relief against a sentence that is asserted to be excessive. The principle may be shortly summarised as follows:

Where intervention by the Court is sought, an applicant and the Crown as appellant must, in each case, persuasively invoke what is commonly referred to as the error principle. The principle is fundamental to the Court of Criminal Appeal's jurisdiction in sentence appeals by either the offender or the Crown. Error must be established under categories, often classified for convenience as being either "patent" or - latent' in nature.

The more specific principles as to the application of these broader principles in Crown appeals are to be found in comprehensive terms in R v Bezan [2004] NSWCCA 342 per Wood CJ, lines [25]-[29].

• The application of principle indicates that successful Crown appeals should be rare, especially when the only error complained of is asserted manifest inadequacy: R v Baker. Unreported, NSWCCA [2000] 85 per Spigelman CJ at [19] ' The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred'.
• Inadequacy of sentence means ' such an inadequacy in the sentence as is indicative of error or departure from principle': Griffiths v The Queen (1976-77) 137 CLR 293, per Barwick CJ. Error will only be established if there has been 'gross departure' from the norm.
• Crown appeals should not unduly fetter the discretion of sentencing judges, and there should always be room for the exercise of mercy:

R v Osenkowski (1982) 30 SASR 212 per King CJ.

• Crown appeals against sentence are ideally to be regarded as a relatively infrequent event. The High Court has said that such appeals, 'should be a rarity': Griffiths at 310; Malvaso (1989) 168 CLR 227 at 234; 43 A Crim R 451 at 456. A significant reason for this is the element of double jeopardy involved in such appeals. Rules designed to safeguard against double jeopardy are deeply embedded in our system of criminal justice: eg R v Dodd (1991) 56 A Crim R 451. Thus, for example, there is (at least for the present and taking account of the recent double jeopardy provisions) no unqualified right of Crown appeal against an acquittal at a trial, as opposed to the High Court's capacity to set aside a Court of Criminal Appeal order of acquittal R v Hillier [2007] HCA 13, wherein the Court set aside the ACT CCA's order of acquittal and ordered a re-hearing of the appeal in the CCA, to be differently constituted..* If a Crown appeal against sentence is successful, and the appellate Court re-sentences the respondent, it does so in the light of all the facts and circumstances as at the time of re-sentencing. Events, which have occurred after the original sentencing, may be relevant.
• An appellate Court has an overriding discretion that may lead it to decline intervention, even if it comes to the conclusion that error has been shown in the original sentencing process. It is submitted that if there is any error established in the present case the margin of inadequacy, if any, is of such a nature as to not justify intervention, having taken account of double jeopardy.
• When, in response to a Crown appeal, the Court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

When is The Crown Likely to Appeal?

Some indication of the approach to be expected of the Crown in considering whether to appeal is to be found in the following extracts from the Office of the NSW Director of Public Prosecutions Guidelines:

Prosecution Guideline 29

Appeals Against Sentences

The prosecutor in any case conducted by the ODPP should assess any sentence imposed. If (and only if) it is considered to be appellable or it is a matter likely to attract significant public interest, a report should be provided promptly to the Director for determination of whether or not an appeal will be instituted.

In determining whether or not to appeal against a sentence imposed by a judge or magistrate, the Director will have regard to the following matters:

(i) whether or not the sentencer made a material error of law or fact, misunderstood or misapplied proper sentencing principles, or wrongly assessed or omitted to consider some salient feature of the evidence, apparent from the remarks on sentence;

(ii) manifest inadequacy of the sentence, which may imply an error of principle by the sentencer;

(iii) the range of sentences (having regard to official statistics and comparable cases) legitimately open to the sentencer on the facts;

(iv) the conduct of the proceedings at first instance, including the prosecution's opportunity to be heard and the conduct of its case;

(v) the element of double jeopardy involved in a prosecution/Crown appeal and its likely effect on the outcome (the probable imposition of a lesser sentence than was appropriate at first instance);

(vi) the appeal court's residual discretion not to intervene, even if the sentence is considered too lenient; and/or

(vii) whether the appeal is considered likely to succeed.

In addition to the above matters prosecutors should be aware that:

• Prosecution/Crown appeals are and ought to be rare, as an exception to the general conduct of the administration of criminal justice. They should be brought to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic approaches to be corrected and to correct sentences that are so disproportionate to the seriousness of the crime as to lead to a loss of confidence in the administration of criminal justice;
• The appellate court will intervene only where it is clear that the sentencer has made a material error of fact or law or has imposed a sentence that is manifestly inadequate (which in the exercise of discretion may still not be sufficient cause);
• The appellate court will take into account the advantages enjoyed by the sentencer which are denied to it;
• The appellate court will not be concerned whether or not it would have found the facts differently, but will consider whether or not it was open to the sentencer to find the facts as he or she did;
• A respondent to a prosecution/Crown appeal suffers a species of double jeopardy which is undesirable;
  • apparent leniency or inadequacy alone may not be enough to justify appellate correction;
  • scope must remain for the exercise of mercy by the primary sentencer;
  • the range of appropriate sentences with respect to a particular offence is a matter on which reasonable minds may differ; and
  • if an appeal is to be instituted, it must be done promptly.

Prosecutors should refer also to Guideline 28 (Sentence).

When a Crown appeal against sentence is being considered, the offender should be so advised if time reasonably permits and again when a direction has been given. Such advice should be given before any information about the appeal or the process is released publicly.

The spirit and intent of Barristers' and Solicitors Rules 71 and A71 (see Appendix B) should also guide the approach taken by prosecutors appearing in the Court of Criminal Appeal (in both Crown and offender appeals).

(Bar Rule 71.)

A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude, but:

(a) must correct any error made by the opponent in address on sentence;

(b) must inform the court of any relevant authority or legislation bearing on the appropriate sentence;

(c) must assist the court to avoid appealable error on the issue of sentence;

(d) may submit that a custodial or non-custodial sentence is appropriate; and

(e) may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority.)

In some appeals the circumstances may justify the Crown submitting that the particular case falls within the "worst case" category and so should attract the maximum penalty or a penalty close to the maximum. In other appeals it may be appropriate to inform the court of the range of sentences which the Crown considers to be appropriate, having regard to official statistics and comparable cases. A specific sentence should not be suggested unless the court expressly seeks assistance in the calculation of an appropriate term of imprisonment'.

An Outline of the Error Principle and its Application:

Errors of a kind likely to activate a Crown appeal fall into two identifiable categories, commonly addressed in pleadings as being either patent or latent errors.

Patent Error

'Patent' error is constituted by a demonstrated error of fact or law.

A mere difference of opinion as to whether a factual issue should have been resolved one way or another is not an error. The appellate Court will not 'second guess' a sentencing judge when he or she has reached conclusion that was reasonably open, even if the appellate judges might not have reached the same conclusion. A classic illustration is whether or not a witness is to be believed or an opinion accepted. In the sentencing area the grey shaded area of error is often whether a given fact was required to have more or less weight. This is not an easy argument to sustain unless the evidence of insufficient weight is readily apparent, as opposed to being arguable on one view.

In the case of patent error in an error of law, the error usually arises from failure to accurately identify or, even if identified, to properly apply correct legal principle.

If there has been a patent error, the Court will not intervene unless it is also of the opinion that another sentence "is warranted" (as to severity appeals see s.6 (3) Criminal Appeal Act 1912). Although there is a theoretical power to increase a sentence on an unsuccessful application for leave to appeal against severity, the Court has not to-date exercised that power.

In short, an error that it has not operated to produce a sentence that is greater or less than was warranted will not provoke intervention by the Court.

Some common examples of patent error to which advocates in the Courts of first instance should be alert include the following:

• A simple error in misapprehension as to the current and correct maximum penalty. This, being one of the first matters for consideration on sentence, is where the parties and the sentencing judge may start getting matters 'right' or - wrong' at the foundation. Although one is tempted to comfortably assume that the representative of the Crown will have this information. It is neglectful on the part of a defence advocate not to check that the relevant section and penalty is being cited. This is particularly so in cases of extended liability offences and where there are variants (e.g. dangerous vs. offensive weapon, abductions with or without injury) an offence and corresponding variations in maximum penalties. Apart from instances of the Crown being disadvantaged by a misapprehension as to the maximum, defence advocates may also by silence expose a client to an excessive, outcome if the sentencing judge and parties share a misapprehension that the penalty is in fact higher than it is. Of course the major danger being considered here is that an otherwise reasonable outcome is rendered insecure by a misunderstanding of a vital reference in the statutory maximum. That is not to say that alerting a judge to his or her misunderstanding of the penalty will inevitably lead to a greater penalty. * Whilst one's client may also be far removed from the category of "worst case" to which a maximum penalty applies, failure to appreciate the significance of the maximum as indicating Parliament's view of the offence may found both patent error and a sentencing outcome that exhibits latent error, in failing to reflect the inherent seriousness of the offence. In R v Zamagias [2002] NSWCCA 17, Howie J expressed the related principle in the following terms (at para. 11):

"The sentencing court must be reminded that the maximum penalty is a reflection of the seriousness with which the public through the Legislature considers the type of criminal conduct with which it is concerned:R v H(1980) 3 A.Crim.R. 53 at 65. It is through the maximum penalty that the Legislature manifests its policy and it is the initial consideration when determining the appropriate sentence: Oliver (1980) 7 A.Crim.R 174 at 177".

The above passage is adopted by Kirby J in R v Cromarty (2004) 144 A Crim R 515, as is Howie J's reference to R v Shankley. [2003] NSWCCA 253 (para. 19)

"A consideration of the maximum penalty prescribed by an offence is fundamental to a determination of the appropriate sentence to be imposed ... It represents the public's view of the seriousness of the crime."

• Failure to take proper account of the relevant aggravating and mitigating factors arising under both as existing at the common law and as specified under s.21A of the Crimes (Sentencing) Procedure Act 1999. A candid analysis by the defence advocate of the applicable factors at common law, in particular those aggravating or mitigating factors pursuant to s.21A, lends credibility and persuasiveness to a structured mitigation plea. The approach of addressing negative matters first prevents the Crown from alone holding the floor on the subject and being the first to ascribe particular weighting or emphasis to them. It is an important tactical asset to be seen as assisting the Court in dealing with matters on both sides of the margin, ascribing such a view to them as can be reasonably supported. In some cases, if potentially awkward factual issues, clear on the evidence, are not addressed by the parties and are not articulated in the judge's remarks on sentence the omission may found a viable Crown appellant's argument of error.
• The failure to take account of prevailing public policy responses of the Court touching the particular area of sentencing. It is crucial to have a realistic concept of where an offence currently stands in the contemporary hierarchy of offences as defined by Parliament and the appellate courts. In some cases there have been a policy changes represented by discernable change of "tariffs" set by the Courts or by movements in penalty provisions set by Parliament. A classic instance of both types of response would be in the area of firearms offences since 1996. * Changes in the way that an offence should be addressed can be otherwise specifically indicated in the several guideline judgments, whether prescriptive in citing a numerical range (as is for instance the case in armed robberies) or indicative (as is presently the case in breaking, entering and stealing offences). Particularly in an instance where there is a clear numerical range as in the armed robbery guideline example and that guideline applies, absent a supportable finding of sufficiently exceptional circumstances, one must clearly establish the evidentiary basis upon which the sentencing Judge might come to an outcome below figures based on the guideline range as adjusted for a guilty plea. Failure to supply the primary judge with the basis upon which he or she will be encouraged to articulate a reasonable justification for a plainly below-range outcome puts the matter in peril of a successful Crown appeal.
• In relation to guideline judgments, one needs to be conscious that they are guidelines and not immutable directives. Nevertheless, departure from a guideline range requires statements of awareness that there is a departure and soundly justifications in both the judge's analysis and in the supporting evidence for a conscious view that departure is appropriate. This is the most effective shield against a Crown appeal that may well be provoked by, even a reasonably justified, departure from the prevailing range of sentencing whether related to guidelines or generally. * If a general range is clearly identifiable for a prevalent offence one needs to become acquainted in general terms with the factors that ordinarily support application of that range. This is the case whether the range is mathematically prescriptive or identifiable with reference to the presence of certain factual elements, either as cited in a guideline judgment or indicated by general appellate outcomes reflecting the impact of particular factual variations. One needs to identify all the factors that must be taken into account in classifying the placement of a matter at a given location in the sentencing range, with care in noting where the facts of the instant matter may be distinguishable, either positively or negatively. A classic case is that where one argues that there is support for an ameliorated view of the offence with reference to the suggested range of outcomes in the Henry guideline one should also be aware of each of the listed factors and that they relate to a 'typical 'offence and offender upon whom the guideline is predicated. This exercise becomes particularly vital where one of the more important factors, such as a limited degree of violence or little or no record has to be distinguished, albeit negatively, if the sentencing judge is not to be lead into error.
• Failure to take proper account of the status of any standard non-parole period: The outcome of applying the correct statutory mechanism for considering how a SNPP relates to a matter may well result in a finding that the standard non-parole period provided for an offence should not be applied directly, particularly where there has been a plea of guilty. Notwithstanding this may be predicable from the outset one needs to be aware that standard non-parole period remains of relevance and not lead the judge into a short-cut route to the conclusion that it does not apply, however correct and desirable that destination is. The fact that Parliament has made provision for a SNPP for an offence under a particular section, even if not to be imposed in situations where there has been a guilty plea, remains as a potent indication of the gravity the offence. This is so whether or not there has been a guilty plea and whether or not the proper following the path analysis required by the statute results in a finding that the matter is within the mid-range of seriousness R v Way (2004) 60 NSWLR 168. Cursory submissions and judgments to the effect that there has been a plea of guilty, therefore the standard non-parole period does not apply may not securely support the same conclusion as a more considered and appeal-proof analysis of why that it the case.

The conclusion, that the standard non-parole period is not applicable, must, to be secure, be approached by following the statutory 'map'.

In simplest terms, this requires:

1. Identifying the offence as a standard non-parole offence.

2. Assessing whether it is within the mid-range of seriousness- but (if so).

3. Classifying it as an offence to which the standard non-parole period is not to be applied directly. In light of reasons, limited to s.21A and that include a common primary reason in the plea of guilty.

• Errors of a technical kind going to the circumstances in which the Court may have power to impose sentences by a particular mode and the steps to be taken in assessing the term and application of that sentencing option. Such errors commonly concern whether non full-time custodial orders, such as home detention, periodic detention or a s.12 suspended sentence order are available at law. Foundational errors as to the offender's eligibility or availability of the sentencing option in the circumstances can render an erroneously approached order a nullity if there has been no power to grant the order in the circumstances. The appellate collapse of the order's validity is a potential disaster for the hitherto 'successful' offender and an advocate hitherto basking in the satisfaction of a non-custodial order. Correcting a foundational patent error of law may result in either the Crown's view of a 'more appropriate' full time sentence being set in the Court of Criminal Appeal or, at best, the return of the matter to the District Court for sentencing according to law.
• As to s.12 orders, there can be an easily created error of approach, detected where it established by the Crown on appeal that the maximum 2 year suspension period has been selected, not because a two year sentence was properly assessed at the appropriate preliminary stage but because a suspended sentence has been pre-selected and then tailored to fit within the 2 year framework. To discourage any such flaw in approach the sentencing court should be addressed in terms of what is the appropriate range (i.e. how long?) and then in terms of the mode of sentencing. See, Dinsdale v The Queen (2000) 2020 CLR 321, where Kirby J said at [79]:

"The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a soft option's when the court with the responsibility of sentencing is 'snot quite certain what to do's."

• Related errors of approach in the same category as above may arise in the formulation of other non full time custodial orders. In R v Foster [2001] NSWCCA 215. The Court of Criminal Appeal described the process involved in imposing such orders as follows:

"Once a Judge has decided that a term of imprisonment is appropriate the Act opens up various sentencing options. If the sentence imposed does not exceed three years, the Court may make a periodic detention order, ...if the appropriate term of imprisonment does not exceed 18 months, the Court may make a home detention order, ...and if the appropriate sentence to be imposed does not exceed two years, the Court may make an order under section 12 suspending execution of the sentence. The process clearly involves two stages."

• R v Edigarov [2001] NSWCCA 436, an early case in the life of s.12 made it clear that of a s.12 suspended sentence cannot validly extend over a period of unexpired parole. (Section 12(2) prohibits the imposition of a suspended sentence when the offender is subject to some other sentence of imprisonment. The phrase "some other sentence of imprisonment" refers to both the non-parole and parole period, since s 132 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides that an offender released on parole continues to serve the sentence during the parole period: per Wood CJ at [29]-[32].
• Errors as to a finding of 'special circumstances'(pursuant to s. 44(1), whereby the judge reduces the ratio of non-parole period from the ordinarily applicable statutory 75% of the head sentence) may arise when the finding is made without a proper foundation in fact and reasoning. A failure to provide reasons has been held to constitute an error of law sufficient to provide a basis for setting aside the finding: see R v McDonald NSWCCA 12 October 1998 and R v Silver [1999] NSWCCA 108, per Simpson J at [24]. Obviously, when one seeks the finding one should frame your submissions in terms that ask the sentencing judge to determine that special circumstances exist for some specified reason. This may be the need for a longer period of supervision (the most common reason given), the accumulation of sentences or some other reason that the Court of Criminal Appeal has also accepted as 'special' in this context. * Uncritical judicial acceptance of expert and medical reports as establishing facts not otherwise supported by evidence, particularly those as to the offender's state at the time of the offence, can result in both patent and latent error. The Court of Criminal Appeal has been stringently critical of an approach that seeks to establish facts that are or should be in issue without supporting evidence from the offender or another witness. This is particularly so in matters of contest and controversy met via the tender of a report alone, see R v Qutami (2001) 127 A.Crim.R. 369. This raises the difficult choice of risking a finding of error through relying on an impressive but factually unsupported opinion, as against calling evidence from the client or another witness. There are attendant perils in both courses, although the least perilous course is when matters can be obtained from a witness other than the client. In some instances there will be little real choice if the report is positive and to be accepted requires that the client confirm that the facts supplied by him or her to the expert as the basis of an opinion. This note of caution should not be misunderstood as urging that all clients be called. One must make a judgement whether this course is unavoidable and whether, on balance it is more probable than not to advance the case. There is no barrier to relying upon a report without calling evidence, particularly if there is no objection as to uncontroversial matters of history supplied by the client and that are recounted therein (see R v Milojevic [2001] NSWCCA 461 per Adams J at [18]).
• Where sentences are to be imposed for multiple offences an approach of simply rolling up all the penalties is an error. Failure to reflect a requirement to assess of individual offences and then assess the totality of any effective sentences required to meet the criminality of all the offences is sometimes a fatal departure from the principle enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. The effect of Pearce, and as subsequently illustrated in a series of Court of Criminal Appeal decisions, is that the once conventional approach that offences "arising from the same circumstances or related circumstances" called favoured concurrent sentences, usually based upon one artificially lengthened exemplary sentence, has now become an erroneous approach.

Of course, it is still the case that a close relationship in time between offences may properly bring a judge to consideration of partial or total concurrence at the final stages of implementing totality considerations. However, such factual relationships create no simple entitlement to such a wholly concurrent outcome R v Hammoud (2000) 118 A Crim R 66, also R v Gorman (2002) 137 A Crim r 66. In pressing for particular modes of amelioration in multiple sentences one should also be aware of situations where an offender is serving the balance of parole and the imposition of wholly concurrent sentences may support an analysis that little or no effective further punishment has been imposed. In a given instance a judge may well be able to sustain good reasons for such an outcome but it is not sustainable if the outcome appears to be the product of simply overlooking the implications of subsumed periods of custody that are concurrently referrable to prior offences.

One never wishes to discourage a appropriately generous manifestation of leniency by drawing excessive attention to the impact of backdates and concurrencies but one does needs to insure that such an outcome is the product of considered acceptance of evidence and supporting evidence. It is of no long-term benefit to obtain a result that is the obvious product of misconceptions, whether as to the real significance of the client's record placed before the Court or in some other relevant respect. It is a matter of fine judgement as where one assesses the matter and whether a judge has overlooked a relevant and operative feature or has plainly been aware and decided that it should not be over-emphasised or perhaps even mentioned.

• Errors of approach as to Victim Impact issues. There is sometimes misunderstanding arising from the implications of R v Previtera (1997) 94 A Crim R 76and other case law relating to of the use of victim impact statements. The statements are some evidence of harm done. Their essential content, once contested and the subject adoption in sworn evidence by a victim may also be used to aggravate facts if established beyond reasonable doubt, see R v King (2004) 150 A Crim R 409. To urge a judge to towards a finding that the statement has no status, having not sought to test the evidence, is to invite an approach of error. This creates something of a dilemma, as one may have to choose between bearing somewhat negative material in a report and pursuing a course of cross-examining a victim. Either course, if misjudged can undermine the security of the outcome in a Crown appeal. Although a victim impact statement that is not subject to cross examination and is to be approached with circumspection as a basis of fact-finding. As discussed by Wood CJ at CL in R v Berg [2004] NSWCCA 300, a sentencing judge is entitled to give the statement such weight as the Court determines. See also R v Slack [2004] NSWCCA 128 per Sperling J at [62]. None of the above is to be seen as an encouragement to invite the collateral damage occasioned if one insists that a victim is to be called and cross examined but it does invite attention to a careful approach to what one can constructively argue as to any evidence going to the always relevant issue of harm done.
• Factual errors generally - sometimes a series of, apparently minor, errors as to facts may arise from a misapprehension of the statement of facts or other material tendered or a failure to settle upon a broad agreement as to what the actually facts are. It is incumbent upon responsible defence lawyers to address any such misapprehension and not leave essential matters as a mystery when there is evidence that should support a conclusion unless overlooked or plainly misunderstood. This does not require one to fill real gaps or dissuade a judge from adopting a generous but still reasonably available interpretation of the evidence.
• A skilled advocate must and will put facts in the best possible light that can be rationally sustained. This valuable skill apart, there is no profit or propriety in disguising, as opposed to addressing and dealing with, matters in evidence that are on the negative side the margin. One is aware of a duty of candour to the Court. It is well established that this duty does not entail raising matters that are not before the Court but does entail not making misleading assertions. The duty not to mislead as to the status of evidence that is before the Court coincides with a duty of competent representation of the client whose matter may eventually come under the DPP's consideration and that of the Court in appellate review.

Latent Error

In the instance of a Crown Appeal the appellant Crown invariably argues that there is latent error in the sentencing outcome, amounting to 'manifest inadequacy'. In passing, cannot resist my somewhat pedantic objection to a rather maladroit expression occasionally appearing in the Crown's submissions by some, which is to the effect that the sentence is in error as it is 'manifestly lenient'. One humbly and patiently suggests that, unless things have got worse than we all might imagine, 'manifest leniency 'is still an entirely allowable exercise of discretion. Properly defined, 'manifest inadequacy' is established when it is apparent that the sentence outcome has not attained the lower limits of a supportable outcome in the exercise of a broad sentencing discretion.

What is an appropriate range of discretion is to be assessed having regard to the facts of the particular offence, the factors peculiar to the particular offender and the constraints of a framework of legal principle and statute law. A proper exercise of sentencing discretion is to be found in any sentence proportionate to the facts as reasonably found and within the bounds of a sentence open to any judge in the exercise of that discretion.

There is no single 'right' or 'wrong' single figure within the allowable range. Whether or not some patent error explains an objectively excessive sentence, the Court will intervene if the outcome is assessed as exceeding the most that was required at law and, consequently, manifestly excessive. In mirrored terms, where there is an assertion of inadequacy, the Court will intervene where it is or the opinion that a greater sentence should have been imposed, not merely that it could have been imposed.

Latent error is, at the same time, both the easiest and most difficult ground to support. The subjective conclusion that a sentence is simply below the minimum required at law to meet all the circumstances of the offence may be strikingly obvious in instances where a pattern of sentencing in combination with the maximum penalty reveals an outcome that is instinctively assessed as wrong. The Crown on an appeal is not required to explain why a sentence is manifestly inadequate, particularly where the degree of inadequacy falls on a simple assessment that another sentence should have been imposed and of a higher order.

Avoiding a Crown Appeal: Getting it Right at First Instance

All of us make mistakes, even judges. There is no magic in the fact that even the wisest of judges may fall into error, more often than not of a technical kind. The criminal law as to sentencing has become a remarkably construct of mathematically complexity, matters that are to be quantified, matters that cannot be but should be and a whole that must reflect an overall instinctive synthesis and. It is not too harsh to say that in recent years, with the assistance of Parliament, sentencing law has attained a state of obscurity, alongside which arguments as to the nature of the trinity or the doctrine of transubstantiation are models of pristine logic and simplicity.

Nothing illustrates the complexity of sentencing law more than the various gymnastics that have been required to explain how certain provisions within s.21A of the Crimes (Sentencing Procedure) Act mean what they say in black and white, except when they don't and as provided. A classic example is the fact that s.21A (2)(d) lists "a record of previous convictions" as an aggravating factor. We now know that, by operation of s.21A (4) this aggravating factor is not actually to be regarded as an aggravating factor as "it would be contrary to any Act or Rule of law to do so". The foregoing formulation arises from the judgment of Howie J in R v Wickham (2004) NSWCCA 193 at [22]. The approach of Howie J was approved by the bench of five judges convened to settle a controversy as to whether s.21A had changed the allowable status of prior record as a sentencing consideration at common law, see R v McNaughton (2006) 66 NSWLR 566. The essence of the latter decision is that it has not.

One should not be too complaisant as to the extent of benefit in the clarification provided by the restatement of principle in McNaughton. It does not remove the prior record from consideration as a subjective factor (in passing reminding one that not all 'subjective' factors are favourable factors). One is reminded that the Common Law, as preserved in s.21A (4) has long accepted that there are certain circumstances in which a prior record can be a factor in heightening the offender's criminality, if not in aggravating the offence itself. The criminal record may also dilute or remove any claim upon leniency and heighten the need for specific deterrence. One class of offence where this clearly arises is breaking, entering and stealing offences, where having reference to the guideline judgment constituted by R v Ponfield (1999) NSWLR 327, correctly to be cited as The Attorney General's Application (No 1) Under s.26 of the Criminal Appeal Act., the fact that a prior record of like offences is a matter to be reflected "in the quantum of sentence". The guideline has, of course also become an addition to the common law of precedent that otherwise qualifies and it to be reconciled with s.21A factors.

The point of the above digressions is that one has to be familiar with statute law and changes and principle as enunciated in the appellate arena from time to time. This is a burden for us all and judges are not exempt from the pressures that can cause one to miss movements, such as the one illustrated above, or misconceive their true impact. One should not assume that the sentencing judge knows everything there is to know, particularly as to matters of sentencing practice that are inherently fluid.

Successful advocacy has always entailed keeping a delicate balance between assistance to the Court and being too didactic, tedious or even insulting by reading a out slabs of appellate decisions to a judge. One has to gain assurance that the judge is particularly alert to recent changes. This can be achieved in a way that both meets one's duty to the Court and advances the interests of one's client. When in doubt I would embrace a formula along the lines of, - As your Honour would be aware, the Court of Criminal Appeal has addressed this issue in...........and I have a copy if it assists.' This is a reliable standby, which is unlikely to unsettle judicial dignity. In such instances one should be armed with multiple copies of the amending statute or the 'native format' versions that of the Court of Criminal Appeal's judgments that one can obtain on the Lawlink site. I suggest multiple copies as many judges has told me that a swift way to a judge's disfavour is to supply only one copy to the judge, who would prefer a working copy to mark and dissect.

Success in sentencing advocacy is not only about obtaining the most lenient result but also relates crucially to obtaining and securing such a result against the event of appellate scrutiny. As in all advocacy, the helpful approach that provides the sentencer with material directed to each of the issues at the crucial stages in formulating the sentence are both helpful and beneficial in advancing towards a desired and secure result. Not to understand and address all the basic requirements of the sentencing process in the context of the matter in which one appears is a sad neglect of professionalism.

A well-structured plea is the best protection that a defence advocate can offer a client against the possibility of having an ameliorating sentence outcome over-turned on appeal. The simplest and best approach is that approach which mirrors the stages and processes of discernable reasoning that the law requires of the sentencing judge. This entails consideration of the objective features of the offence and subjective circumstances of the offender that may arise in balance, in a negative or positive sense.

A good plea framework may arise from consideration of the lists of matters inherent in s.21A, remembering that the Common Law is only supplemented and not ousted by those provisions. Some judges and practitioners approach the task of formulating sentencing solutions with specific reference to the s.21A list. This is a reasonably secure, if somewhat formulaic, approach for an advocate who is not always confident of his or her ability to seamlessly weave the common law and statutory considerations into an attractive fabric.

Whilst being careful to address the s.21A factors, one should, equally bear in mind the underlying Common Law principles that still apply. They require consideration of:

• The offence, both in its specific facts and inherently, as related to the purpose and policy to which its creating statute or the common law has been directed.
• The harm done, including where appropriate, the uncontested material in a victim impact statement.
• Factors of aggravation and those of Mitigation.
• General deterrence, with reference to where such an offence sits in the view of the public.
• Specific Deterrence, with reference to the particular susceptibility of the offender to be being deterred by a penalty of a greater or lesser type or duration.
• Rehabilitation, with realistic appraisal of the offender's prospects.
• Proportionality.
• Consistency.
• Parity, with a careful appreciation of matters attaching to any co-offender that either require parity or justify disparity.
• Totality. If it is assessed as profitable to approach this aspect, one should be prepared to engage in a candid exposition of all the conduct to be addressed by the sentence and any other sentences that have been or are still to be completed served.
• Mercy. With proportionality, this is an often overlooked but equally legitimate aspect of the criminal justice system. It must be reconciled with the other factors, in particular with proportionality to the offence or offences that have been committed R v Lattouf [1996] NSWCCA 12 December 1996 per Mahoney ACJ ' A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be be put aside. As I have elsewhere said, if justice is not individual, it is nothing:Kable v Deputy Director of Public Prosecutions (1995) 36 NSWLR 374 at 394'.
• The plea and, where appropriate its utility through promptness or in relation to a weak Crown case. It is important to understand that the latter may add to utility but the presence of a strong Crown case does not weaken the claim for utility in a prompt plea, which must be distinguished from matters of contrition.
• Contrition, where appropriate. As noted above, one should be careful that this is not confused with the utility in the fact of a timely plea alone.

In assessing how far one may press claims for a mitigated punishment, one should be prepared as an effective defence advocate to assess, not only such matters as contrition, and the claims favouring mercy and rehabilitation but also the requirements of punishment and community protection as and where the judge may properly place them in the sentencing matrix. Sometimes the most powerful way of expressing the latter less appealing aspects of required punishment is to address the public interest in both punishment and rehabilitation. If the latter is a somewhat nebulous prospect one should not provoke and obvious rebuke by relying unrealistically on any purported claim to mercy from consideration of that area.

The aspect of what the minimum requirements of punishment may be is best covered with measured candour early in the plea in mitigation. This task should be embraced, not as an act of surrender, but as a tactical seizure of territory to be made you own. Failure to address the negative aspects of a matter squarely leaves disproportionate influence over realistic fact-finding in the hands of one's opponent. If one's opponent inadequately addresses the facts and there is a consequent inadequate handling of them in the judge's remarks a risk arises. The Court of Criminal Appeal may well find that the sentencing judge did not adequately consider both the facts of the offence and those relating to the offender in a sufficient manner to resolve proper tensions in the sentencing process between mitigation and proportionality to the offence.

A sympathetic judicial response to a compelling subjective case is to be desired and is recognised by appellate courts as proper in circumstances where the purposes of sentencing are otherwise satisfied. If a judge's sympathy is activated by fine advocacy alone, judicial mercy can too easily be presented on a Crown appeal as flying in the face of other matters that required attention if justice was to be afforded the community interest. A result reached in a factual vacuum, where too little is said by the parties or the judge about the seriousness of an offence or the actual harm done, or where a subjective case is inferential and light on evidence, is vulnerable. In short, jubilation in obtaining a 'good 'result is likely to be short-lived in circumstances where either shining advocacy or a talent for distraction has obscured the facts or their significance.

Resisting a Crown Appeal that has been instituted

As suggested above, the best counter to the danger of a Crown Appeal is, at first instance, to obtain a sustainable outcome resulting from evidence and advocacy that has been well presented and thoroughly considered. There is certainly no room in the present appellate environment to leave any effective and favourable factual issue matter on sentence in some kind of reserve against the contingency of a Crown Appeal. I raise this unlikely rationale simply because it has been put to me more than once that a report or other source of evidence was not pursued at first instance but was something that could be obtained on the Crown Appeal, as indeed it could be in a restrictive sense and but with unreliable effect.

Sometimes, despite one's best endeavours the Crown will appeal an eminently reasonable result. This appears to happen more often than was once the case-as we see from the figures with which I commenced this paper. When faced with this uncomfortable reality one should not under-rate the real peril to which a client as respondent is exposed. A Crown Appeal is not, however, the appellate equivalent to an untreated case of the Ebola virus, one can survive it:

Significant protection is afforded the respondent to a Crown Appeal in the seminal reality that there is an onus on the Crown to establish reasons why the Court should disturb the status quo. In essence the Court cannot simply 'second guess' the sentencing judge, absent proven error. For the Crown, the devil is in the detail: Proving error usually relates to the highly subjective analysis of what is asserted as latent error via 'manifest inadequacy'. As noted above this is not to be confused with mere leniency that another judge might not have extended.

An over-view of case law over the past eighty years since the Crown Appeal mechanism was created as an exceptional provision, might lead one to expect the Court to be reluctant to trespass upon the territory of a properly founded exercise of a sentencing judge's discretion. Despite the fact that the concept of the Crown Appeal as a 'rare event' has become somewhat theoretical, reluctance to overturn otherwise technically sound discretion remains, provided that that the discretion is indeed properly founded, and not fatally flawed by of error of law or fact. Once such an error is revealed the essential question will be whether the Court's discretion to intervene is to be activated.

As counsel for a respondent in the Court of Criminal Appeal one must, having reminded the Court of its traditional reluctance to intervene, be ready to identify those instances where one's efforts will be wasted on argument seeking to defend a clearly patent error. Often the main field of contest is whether the Court will exercise its discretion not to intervene. It is in this area that such matters as delay in instituting the appeal, the attitude of the Crown at first instance, the impact of double jeopardy and the respondent 's current position can become vital. It may also render quite crucial some of those seemingly casual bar-table exchanges in the first instance proceedings that make their way into the transcript and which reveal the positions taken by the parties that may have informed the judge's approach.

On the basis of the onus cited above, a Crown Appeal on the basis of an asserted latent error may have the superficial appearance of being a very significant challenge for the Crown. Unfortunately, this is not always the case, particularly where a judge with a pattern of lenient sentencing has met a grave offence with an outcome that appears overly lenient on its face. The appellate Court may be invited to conclude that there has been error, on the basis of examining an outcome that is significantly less than the notional range, when related to statistics or as simply offending the Court's instinctive conclusion of inadequacy. In some instances the respondent will be able to defend against such an appeal on the basis that reasonable a divergence of judicial opinion may exists as to what is an allowable range of outcomes. Another way of expressing this is that, even if (as is sometimes the case when the Court is dismissing a Crown appeal) the judges of the Court would have imposed heavier sentences, it was still open to the sentencing judge to assess the matter differently without that representing error.

In some instances, although loathe to give a flawed first instance outcome approval, the Court will decline to intervene, having regard to factors of double jeopardy and hardship. This factor exists in the simple fact of particular circumstances where it is deemed inappropriate to apply the Court's view a correct sentence after the delay brought about by the appeal. In this regard it is always important to have regard to any delay in instituting the appeal and any real, as opposed to assumed, additional hardship that has resulted. One also finds greatest anxiety in the Court where in an instance where an offender is at liberty and success in the Crown Appeal would most probably call for the imposition of a relatively short sentence, which is rendered far more harsh because of the respondent's period of uncertainty as to his or her fate.

It will be seen that the figures at the commencement of this paper point to the common route to surviving a Crown appeal is in the Court finding manifest inadequacy but declining to exercise its discretion to intervene. This course does have a pragmatic attraction for the competing interests of the parties. It permits the Court to make an effective statement of policy. This can be critical of a particular and inadequate approach at first instance but still interprets the interests of justice as not requiring that the respondent be further punished by virtue of errors by the primary judge. This is particularly so if the Crown itself was not active in preventing the errors.

Further material filed for the respondent on the Crown Appeal

It is sometimes mistakenly thought that, on a sentence appeal, one routinely obtains affidavits and reports of various kinds, simply to meet the contingency of re-sentence. Although that purpose is frequently the main one, another value in such material may be to dissuade the Court from embarking on any intervention, particularly if it is revealed that untoward hardship or interruption of rehabilitation will result. At the first hint of a Crown appeal, which is usually fairly swiftly after the sentence, one needs to start considering how such material is to be amassed. Advising on this aspect is the final area of action for the first-instance advocate in playing a role in resisting the pending Crown appeal. The prospective appellate respondent's prospects of surviving a Crown Appeal without further injury sometimes turn on his or her conduct after the initial sentence. This is an important matter to be remembered when giving advice in the immediate often-euphoric aftermath of a "good" result. It may somewhat dampen the moment but there will be instances where it is very responsible to advise, both of the prospect of a Crown Appeal and of the importance of continued good behaviour, at least one possible analgesic against the worst effects of the "Crown Appeal Virus".

Chris Craigie SC

Deputy Senior Public Defender

August 2007