Kentwell v R: a deeper read.

A separate note on this site sets out the basic appellate framework in Kentwell v The Queen [2014] HCA 37: where the appellate court identifies a specific error in the sentencing exercise under the House v The King categories, the appellate court must re-exercise the sentencing discretion afresh. This piece goes one level deeper. It looks at the plurality reasoning, the structure of the re-sentencing exercise, the relationship between specific error and manifest excess, and the practical implications for how a sentence appeal is run in current NSW practice.

The legal hook.

In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, the High Court (French CJ, Hayne, Bell and Keane JJ) addressed two related questions arising from a Court of Criminal Appeal sentencing appeal. The first was the proper approach where the CCA identifies a specific error under the House v The King categories. The second was the relationship between that approach and the residual ground of manifest excess. The plurality held that where specific error is established, the CCA is required to re-exercise the sentencing discretion: it does not have a discretion to refuse to do so on the basis that the original sentence was within the range of available sentences. Where no specific error is shown but the sentence is nonetheless manifestly excessive, the CCA likewise intervenes; manifest excess is itself a category of error.

The decision overruled the line of CCA authority that had treated re-sentencing as discretionary even where specific error had been identified. After Kentwell, the re-sentencing exercise is mandatory once the specific error is shown.

The House v The King categories.

House v The King (1936) 55 CLR 499; [1936] HCA 40 sets out the categories of specific error. The categories are these.

• The sentencing judge acted on a wrong principle.
• The sentencing judge allowed extraneous or irrelevant matters to guide or affect them.
• The sentencing judge mistook the facts.
• The sentencing judge did not take into account some material consideration.

Each of the four categories is discrete. The appellant must identify which category is engaged and how. A specific error appeal that asserts the categories generally without identifying which is engaged is rarely successful; the CCA will want the appellant to point to the particular ruling, finding, statement of principle, or omission that constitutes the error.

Kentwell's effect is that once the appellant identifies a specific error in one of the four categories and the CCA accepts it, the CCA proceeds to re-sentence. The appellant does not have to show, in addition, that the original sentence was outside the range of available sentences. The re-sentencing follows from the error.

The re-sentencing exercise.

The re-sentencing exercise is conducted afresh. The CCA takes the material that was before the sentencing court, plus any relevant material that has emerged since (including evidence of rehabilitation while in custody under the original sentence), and re-exercises the sentencing discretion on that material. The CCA is not bound by the original sentence in any way; the CCA's exercise is independent.

Three points about the re-sentencing process are worth noting. First, the CCA must conduct the re-sentencing in accordance with the principles in the Crimes (Sentencing Procedure) Act 1999 (NSW) and the relevant authorities; it is not a discretion at large. Second, the CCA's re-sentence may be lower, the same, or higher than the original sentence. In practice, where the appellant is the offender, the re-sentence usually produces a lower or equal sentence; a re-sentence that increases the head sentence is uncommon but not impossible. Third, the re-sentencing is conducted on the papers and at the hearing without re-opening the factual findings of the sentencing court, except where the specific error itself bears on the factual findings.

The relationship with manifest excess.

Manifest excess is a separate ground of appellate intervention. It does not require the appellant to identify a specific error in the sentencing exercise. The argument is that the sentence, looked at as a whole, is outside the range of sentences that the sentencing judge could properly have imposed on the material before them. The High Court has treated manifest excess as a category of error in its own right.

The relationship between specific error and manifest excess matters in practice. A specific error appeal that fails on the specific error ground may succeed on the residual manifest excess ground. A successful manifest excess appeal also produces re-sentencing, on the same basis as a successful specific error appeal. The two grounds are not alternatives; they can be run together and frequently are.

The strategic implication is that an appellant on sentence will identify, where they can, both a specific error in the sentencing exercise and a residual manifest excess argument. The specific error gives the strongest path to re-sentencing because it does not require the CCA to second-guess the sentencing judge's intuitive synthesis of the range. The manifest excess argument is the fallback.

What current NSW practice looks like.

In current NSW practice, sentence appeals to the CCA are run on a structured ground sheet. The grounds typically include one or more specific error grounds (identifying the wrong principle, the extraneous matter, the mistake of fact, or the failure to take a material consideration into account) and a residual manifest excess ground. Each ground is supported by reference to the sentencing judge's reasons and to the material that was before them.

The appellant's written submissions follow the structure of the grounds. Each ground is developed, with the relevant authorities cited and the application to the appellant's case argued. The re-sentencing exercise that follows a successful appeal is the subject of separate submissions, addressing the material to be considered on re-sentencing (including any post-sentence material) and the appropriate range.

The Crown's submissions usually concede where a specific error is obvious and confine the contest to whether the re-sentence should be in the same range as the original sentence. Where the Crown contests the error, the appellate argument is on the error itself; the re-sentencing exercise only becomes live once the error is established.

The practical implications for solicitors and counsel.

For practitioners running sentence appeals, the Kentwell framework has three working implications.

First, the appellate grounds need to be drafted to identify specific errors with precision. A ground that asserts "the sentencing judge erred in assessing the objective seriousness" is too general. A ground that says "the sentencing judge erred in finding the offence to be in the upper range of objective seriousness in circumstances where [identified material] showed it to be in the middle range" is the kind of specificity the CCA wants.

Second, the material for re-sentencing has to be assembled before the appeal hearing. Post-sentence rehabilitation evidence, updated medical evidence, work undertaken in custody, and family evidence are all part of the re-sentencing package. The appellate court will not adjourn the re-sentencing to allow the appellant to assemble the material; the material has to be ready at the hearing.

Third, the manifest excess argument should always be run as a residual ground. The cost of running it is low; the prospect that it produces a result the specific error grounds do not is real.

One last note.

Kentwell is a working framework that shapes the way sentence appeals are run in NSW. It removes a discretion the CCA had previously exercised in declining to re-sentence; it places the appellate court's task on a clear footing once specific error is established; and it confirms manifest excess as a residual ground of intervention. For the offender on sentence appeal, the framework increases the probability that a successful appeal produces a re-sentence rather than a confirmation of the original sentence. For the practitioner, the framework requires careful grounds drafting, careful preparation of the re-sentencing material, and a clear understanding of the interaction between the specific error grounds and the manifest excess fallback.

This note is general information about the High Court framework in Kentwell v The Queen and is not legal advice for any particular case. For advice on a real appeal, contact us through our contact page or phone 0421 717 019.

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