Crown appeals against inadequacy of sentence in New South Wales

Abstract

The focus of this thesis is on Crown sentencing appeals in New South Wales where, since the 1980s, there has been a consistently high success rate combined with an upward trend in the number of Crown appeals. The thesis critically analyses the orthodox judicial approach to Crown sentencing appeals. This orthodoxy states that such appeals 'should be a rarity' and that appellate courts ought to show restraint when considering increasing a sentence on a successful Crown appeal. The leading High Court authority of Griffiths v The Queen (1977) has dominated Australian case law. It established this rarity and restraint doctrine, but statistics cast doubt on its practical application. This thesis reveals that Griffiths needs to be re-assessed for a number of reasons. For one, it appears that its rarity doctrine was an overreaction to a highly politicised and anomalous ‘Spike’ in the number of Crown sentencing appeals occurring in New South Wales in the mid-1970s. This Spike disturbed the previously consistently small number of Crown appeals in that State (and Australia-wide) and seems to have alarmed the High Court. The Spike occurred ahead of a State election in which law and order issues were prominent and, at a time when the Attorney-General alone, a political officer holder, had the power to institute a Crown appeal and appeared to suddenly do so in an aberrant, but short-lived, way. Ever since, the Griffiths rarity statement has had a profound and jarring influence on the theoretical position of the law with respect to Crown sentencing appeals. Since the mid-1980s appeal decisions are exercised by a politically-independent DPP. In addition, New South Wales sentencing law has increased massively in complexity making judicial sentencing decisions far more prone to error than in the past. For this reason alone, it is not surprising that after decades of very few Crown appeals, they are now prevalent. The thesis tracks the divergence of doctrinal orthodoxy and actual practice and explores how the law’s attitude to Crown appeals can and should be rationalised to enable fair and consistent sentencing outcomes and better serve the requirements of modern appellate decision-making.