The High Court has allowed an appeal against the decision of the New South Wales Court of Criminal Appeal on s 5D of the Criminal Appeal Act 1912 (NSW). That section allows the Attorney-General to appeal a trial court sentence to the NSWCCA, which may by discretion vary the sentence or impose a new sentence. After he was charged with sexually assaulting his daughter, CMB attended a pre-trial diversion program that encouraged participants to ‘face up’ to themselves, with ‘further disclosures’ regarded as ‘a sign of positive commitment to change’. The program stated that the Department of Corrections and NSW Police would be notified. CMB disclosed further offences, and later pled guilty to both sets of charges. Ellis DCJ sentenced him to concurrent good behaviour bonds of two and three years on the condition that he remain in the program. The Attorney-General appealed this sentence to the NSWCCA, who sentenced CMB to five years and six months in prison with a non-parole period of three years. The NSWCCA held that the primary judge erred in approaching sentencing in a way that tried to ameliorate the perceived unfairness of lengthy sentences following a voluntary disclosure ([82]–[84]) and in failing to consider their objective seriousness ([87]–[89]). Central to the appeal to the High Court was whether the NSWCCA erred in placing the onus on CMB to demonstrate that the discretion ought to be exercised in his favour, and whether the NSWCCA’s formulation of the sentence was correct.

The High Court unanimously allowed the appeal, issuing two judgments. The plurality (Kiefel, Bell and Keane JJ) held that both grounds of appeal were made out, while French CJ and Gageler J allowed the appeal on the first ground alone, holding the second was not made out.

On the issue of onus, both judgments proceeded from Heydon JA’s statement in R v Hernando [2002] NSWCCA 489:

if [the Court of Criminal Appeal] 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.

The plurality held that the NSWCCA was wrong to impose an onus on CMB to show that the residual discretion should be exercised in his favour, and that the statement in R v Smith [2007] NSWCCA 100 that it relied on to conclude the onus fell to CMB was erroneous (at [66]). Nor could the Court agree with the Attorney-General’s submission that had the NSWCCA applied the correct approach that it would have arrived at the same conclusion that it should not exercise its discretion to intervene (see [69]). French CJ and Gageler J likewise held that surmounting the second hurdle should have fallen to the Attorney-General, and this error was not immaterial (at [36]). Because considerations of how the residual discretion should be exercised are not a matter for the High Court, but rather the NSWCCA, the Court need only reject the Attorney-General’s submission that the NSWCCA’s discretion could only reasonably have been exercised to vary the original sentence (at [39]). For French CJ and Gageler J, that was not the case here because of two factors weighing against interfering with the sentence (see at [36]–[38]).

On the issue of reduction for disclosure, the plurality held that the NSWCCA erred in its approach to varying the sentence in reducing for disclosure under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW): the central issue was not whether the NSWCCA regarded non-custodial sentences as unreasonably disproportionate but whether it was open to the trial judge to exercise his discretion to determine that they were not (at [78]). French CJ and Gageler J held that the NSWCCA had not shown any error of principle in assessing the reduction for disclosure (at [44]).