The not-so-unfettered discretion

Some days, I just can't help but feel sorry for Parliamentary drafters. Take a reasonably simple provision like s669A of the Criminal Code (Queensland):

(1) The Attorney-General may appeal to the Court against any sentence pronounced by--

(a) the court of trial; or

(b) a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court;

and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.

When Parliamentary Counsel wrote that provision, what sort of fetters do you think he or she intended would apply to the Court's ability to vary the sentence and impose such sentence as seemed proper?

In Lacey v AG [2011] HCA 10, a 6-1 majority of the High Court (Heydon J dissenting) settled on the word "appeal" in the opening words to hold that, like other appeals, the appellate court could not interfere unless it first determined error in the original sentence.



The history of s669A is fascinating. The majority recounts that the predecessor to the provision was first introduced in 1939, in similar form, though omitting the word "unfettered". The interpretation of this provision was largely guided by a High Court decision that is frequently overlooked in the frequent statements about judicial restraint in determining Crown appeals: Whittaker v The King. This decision supported an expansive view of the ability of an appellate court to review a sentence on a Crown appeal. A view that has fallen away since decisions such as Griffiths v R, Everett v R and Malvaso v R.

The interpretation of the provision was radically changed in Queensland in a 1973 decision, R v Liekefett; Ex parte Attorney-General, which held that, like other Crown appeal provisions, the principles from House v R applied. Two years later, the Queensland Parliament amended the structure of s669A to its current form, with the main substantive difference being the addition of the word 'unfettered'. As one might expect, Queensland courts saw this as a repudiation of Liekfett and reverted to its former approach. Now, the High Court has restored the Liekfett approach (at [61]-[62]):

The Solicitor-General of Queensland pointed to the background to the enactment of the new s 669A(1) in 1975 as a response to the 1973 decision of the Court of Criminal Appeal in Liekefett. The record of the Second Reading Speech shows that the Minister for Justice intended, by the repeal and re-enactment of s 669A(1), to "make it clear that the Court of Criminal Appeal has an unfettered discretion to determine the proper sentence to impose when the Attorney-General has appealed against the inadequacy of the sentence." The Minister's words, however, cannot be substituted for the text of the law, particularly where the Minister's intention, not expressed in the law, affects the liberty of the subject. In any event the Minister's Speech left open the question of the content to be given to the word "appeal" and thereby to the jurisdiction conferred upon the Court. Neither expressly nor by necessary implication do the words of s 669A(1) define the jurisdiction simply by reference to the power to vary sentences if the Attorney-General chooses to appeal. Such a construction would require clear language to overcome the intention which the common law imputes to the legislature that it does not require the Court to consider an appeal on the basis that it might be persuaded to disagree with a sentence which could not be challenged as manifestly inadequate or excessive or otherwise affected by error.

In our opinion, the appellate jurisdiction conferred upon the Court of Appeal by s 669A(1) requires that error on the part of the sentencing judge be demonstrated before the Court's "unfettered discretion" to vary the sentence is enlivened. The unfettered discretion may be taken to confer upon the Court of Appeal in such a case the power to substitute the sentence it thinks appropriate where error has been demonstrated. The appeal should be allowed. The question that then arises is whether the matter should be remitted to the Court of Appeal on the basis that it did not determine whether the trial judge erred in principle or imposed a manifestly inadequate sentence indicative of such error.

Heydon J wrote what was, in my view, a very strong dissent. He emphasised that the existing line of authority in Queensland gives appropriate weight to the statutory language and avoids rendering the word "unfettered" redundant. At [84], he observes:

The appellant submitted:  

"the purposive approach to statutory interpretation in this matter is of no value as such an approach would do nothing other than lead to greater confusion. In such circumstances, reliance must be placed upon the words of the legislation. To change long established legal principle requires clear and unambiguous statutory wording. Such wording is absent in s 669A(1). In that regard it would not have been difficult for the legislature to have amended the section in such a way as to avoid all ambiguity as to its intention."

The first two sentences are correct. So, it may be assumed, in the context of the present proceedings, is the third sentence. With respect, the fourth is not correct. And the appellant did not suggest a clearer way by which s 669A could have been amended in 1975.

He also examines the various extrinsic material that confirms that the purpose of the 1975 amendment was to reverse Liekfett and concludes that this purpose must be given effect. Finally, he rejects the view of the majority that 'appeal' must involve correction of error. At [94], he states:

The fourth consideration concerns the word "appeal". The appellant submitted that the selection of the word "appeal" in s 669A(1) indicated that the process was one involving the correction of error in the relevant sense. The submission assumes that all procedures described in legislation as "appeals" must involve the correction of error in the relevant sense. That assumption is unsound. The construction of "unfettered discretion" adopted by the Court of Appeal majority is not antithetical to the word "appeal" in s 669A(1). The legislature is at liberty to fashion what particular types of appeal it wishes to create.

Comment
I cannot help but agree with Heydon J regarding this decision, as I struggle to understand how the Queensland Parliament could have made itself any clearer. Is it really necessary to add a provision such as:

(1A) In determining an appeal under (1), the Court of Appeal need not find error in the original sentence.

Sure, it could do this and it would make it clearer. But having already added the word "unfettered", it simply shouldn't be necessary. If the 1975 amendments had instead been added to reverse the common law restraint principles on Crown appeals, and so functioned as a spiritual predecessor to s289 of the Criminal Procedure Act 2009, then I agree that the Queensland court shouldn't suddenly decide to ditch the principle that error must be shown on an appeal. The appellant in the High Court even conceded that the provision meant that, if the Court decided to allow the appeal, it was not fettered in determining the appropriate sentence. But, the history of jurisprudence in Queensland makes it clear that it wasn't addressing that issue and, as Heydon J points out, such fetters have no basis in the text of the legislation.

I also agree with Heydon J that the majority's narrow construction of the word "appeal" seems unsustainable. The majority identifies the three commonly recognised forms of appeal - Appeal in the strict sense, Appeal de novo and Appeal in the nature of a rehearing. However, having concluded that it is not an appeal de novo, the majority assumes that it must be in the nature of a rehearing, rather a fourth type of appeal - One in which the court must decide for itself, on the basis of materials before the original judge and any fresh evidence that is properly admitted, what sentence should be imposed. This blurs the line between de novo and rehearing appeals, but such a species of appeal already exists. It also has the virtue of giving weight to all the words of s669A(1), rather than focusing on "appeal" and making "unfettered" subordinate to the predetermined nature of the "appeal".

Since I anticipate that the Queensland Parliament will look to restore the previous interpretation of s669A and reverse the effect of Lacey, let me conclude on a hopefully lighter note, and offer a few suggestions for how it might do this:

• Replace the word "appeal to the Court against" with "seek the review by the court of"
• Replace the word "unfettered" with "completely unfettered", "well and truly unfettered" or"really unfettered".
• Add the words "regardless of error" after the word "discretion"
• Replace the words "vary the sentence and impose such sentence as to the Court seems proper" with "decide for itself what sentence to impose"
• Add a subparagraph (1A) which reads "In the interpretation of this provision, Heydon J in Lacey v AG was right"

Or maybe there are so many options Parliament simply cannot choose and so it adopts all of the above, leading to:

(1) The Attorney-General may appeal seek the review by the court of any sentence pronounced by--

(a) the court of trial; or

(b) a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court;

and the Court may in its completely, really, well and truly unfettered discretion regardless of error vary the sentence and impose such sentence as to the Court seems proper decide for itself what sentence to impose.

(1A) In the interpretation of this provision, Heydon J in Lacey v AG was right.

Even then, we must wonder whether the provision is sufficiently clear!