Court of Appeal defends judge’s decision in reasons for dismissing A-G’s appeal

The Queensland Court of Appeal has dismissed an appeal by the Attorney-General against the “leniency” of a jail sentence, saying the prosecution failed to fully articulate its position before a District Court judge.

The court yesterday dismissed an appeal by Queensland Attorney-General Shannon Fentiman on the “manifest inadequacy” of a sentence imposed against Anthony Ian Green in the Gympie District Court on 15 February.

Green, aged in his 60s, was sentenced to 4½ years’ jail when he pleaded guilty to a number of serious sexual assaults – also deemed to be offences of domestic violence – committed against two young girls.

District Court Judge Glen Cash, after hearing submissions from both the Office of the Director of Public Prosecutions (ODPP) and lawyers for Green, ordered that the sentence be suspended after Green had served 13 months in detention for a period of five years.

The Attorney-General, represented by ODPP Director Carl Heaton on appeal, argued that the sentence imposed was manifestly inadequate and that Green’s prison term should be suspended after serving 18 months in custody.

Court of Appeal President Justice Walter Sofronoff, in a brief three-page decision, said: “I am bound to point out that it is settled by high authority that an appeal against sentence by an Attorney-General ‘should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function … to lay down principles for the governance and guidance of courts having the duty of sentencing convicted person’.

“When manifest inadequacy is the ground, it is not enough to show only that the result arrived at … (by the sentencing court) is markedly different from other (comparable) sentences.

“Appellate intervention is justified if, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle.

“Moreover, as this Court has recently said, if defence counsel, or even the judge, raises suspension of a sentence of imprisonment as a possibility, then if that course is regarded by the prosecution as beyond the scope of sentencing discretion, it is the duty of prosecuting counsel to say so to the sentencing judge.

“If such a submission is not made, then the prosecution should not be permitted to advance such a submission for the first time on appeal.”

The court was told that, during Green’s sentencing hearing before Judge Cash, the prosecution was the first party to raise a possible suspension of any term of imprisonment imposed.

“Defence counsel (for Green) and (Judge Cash) then adopted this course, yet now the submission is made for the first time that a suspension of the term of imprisonment after the respondent had served 13 months of a 4½-year sentence could only have been the result of an error of principle in the exercise of discretion and that it is only a suspension after 18 months’ imprisonment that will do,” Justice Sofronoff said.

“In my respectful opinion this appeal has no merit and, for these reasons, I joined in the order dismissing the appeal.”

Justices Philip Morrison and Justice Flanagan agreed with Justice Sofronoff’s reasons and decision.

Read the full decision.

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