High Court of Australia

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

11 Mar 2015

Case Number: S257/2014


French CJ, Kiefel, Bell, Gageler, Keane JJ


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

Words and phrases – "discretion not to intervene", "leniency", "manifestly inadequate", "onus", "proper sentence", "residual discretion", "restraint", "unreasonably disproportionate".

Criminal Appeal Act 1912 (NSW) – s 5D.

Pre –Trial Diversion of Offenders Act 1985 (NSW).

Crimes (Sentencing Procedure) Act 1999 (NSW) – s 23.

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