Brighton v RSPCA (NSW) [2023] NSWSC 1653 (13 December 2023)

Last Updated: 16 January 2024

Supreme Court New South Wales

Case Name:	Brighton v RSPCA (NSW)
Medium Neutral Citation:	[2023] NSWSC 1653
Hearing Date(s):	13 December 2023
Date of Orders:	13 December 2023
Decision Date:	13 December 2023
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) Noting that the appeal against the conviction and/or application for leave to appeal against the conviction is withdrawn, that application or appeal is dismissed. (2) Leave to appeal against the sentence granted. (3) Appeal against sentence upheld and the sentence imposed by the Local Court on 11 July 2022 is set aside. (4) In lieu thereof, the appellant is sentenced to an aggregate term of imprisonment 2 years to be served by way of an intensive corrections order with the following conditions pursuant to ss 73 and 73A of the Crimes (Sentencing Procedure) Act 1999: (a) The appellant must not commit any offence. (b) The appellant must submit to supervision by a community corrections officer. (c)The appellant must take part in a rehabilitation programme directed towards anger management. (5) For the purpose of s 53A(2)(a), I indicate that the individual sentences I would have imposed had an aggregate sentence not been imposed are 20 months for the first offence and 12 months for the second offence. (6) Costs reserved and the parties have leave to approach my associate with consent orders relating to costs.
Catchwords:	CRIMINAL LAW – sentence – serious animal cruelty – savage attack on wild dog which attacked zookeeper’s camel – camel’s name Alice – dog’s name not known – litigation with lengthy history – concurrent intention to kill dog and to inflict severe pain – where Magistrate imposed full time prison sentence exceeding three years following summary hearing – where parties agreed two year Intensive Corrections Order appropriate – where conviction appeal withdrawn – whether concessions should be accepted – offender with impeccable history of caring for animals – no relevant criminal history – peculiar circumstances in which offences committed – offender unlikely to offend again – sentence imposed in Local Court plainly wrong and unjust – manifest excess – appeal upheld CRIMINAL LAW – appeals form Local Court – choice of forum – factors to be considered
Legislation Cited:	Crimes Act 1990 s 530 Crimes (Appeal and Review) Act 2001 ss 11(2)(a), 12(3), 13(2), 17, 18, 19, 52, 53 Crimes (Sentencing Procedure) Act 1999 ss 5, 73, 73A Prevention of Cruelty to Animals Act 1979 s 21(d)
Cases Cited:	Berryman v R; Wood v R [2018] NSWDC 486 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 House v The King (1936) 55 CLR 499; [1936] HCA 40 Markarian v The Queen (2005) 228 CLR 357; HCA 25 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 Will v Brighton (No 2) [2021] NSWCA 8 Will v Brighton [2020] NSWSC 435
Category:	Principal judgment
Parties:	Daniel Brighton (Plaintiff) RSPCA (NSW) (Defendant)
Representation:	Counsel: C Birch SC and M Sahade (Plaintiff) T Game SC and L Hutchinson (Defendant) Solicitors: Gibson Howlin Lawyers (Plaintiff) K Jurd (Defendant)
File Number(s):	2022/65774
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	NSW Local Court
Jurisdiction:	Criminal
Citation:	N/A
Date of Decision:	08 February 2022
Before:	Degnan LCM

JUDGMENT

1. This arguably interesting court case involved a unprovoked attack by two dogs on a camel called Alice, the barbaric killing of one of the dogs by the camel’s owner, summary convictions on 2 counts of animal cruelty, a successful appeal to this Court and again (on different grounds) to the Court of Appeal,^[1] remittal back to the Local Court, further convictions by a different Magistrate, the imposition of an extraordinarily severe sentence, and a further appeal to this Court accompanied by substantial legal skirmishing.
2. On the second day of the hearing before me, the parties – surprisingly but mercifully – reached an agreed position as to the appropriate disposition of the appeal. Seized of the facts and passingly familiar with the legal principles at issue, I accepted the concessions made by each side and, upon considering the sentencing discretion afresh, made orders reflecting the parties’ joint position (subject to one minor matter). Because those orders included quashing a full-time sentence of imprisonment and imposing an appropriate sentence to be served by way of an Intensive Corrections Order (“ICO”), it is necessary to expose my reasons for making those orders. However, my reasons need not be unduly detailed and lengthy.
3. The events giving rise to the prosecution occurred on 14 January 2016. I made the orders to which these reasons relate on 13 December 2023. The case came before the Court as an appeal, or application for leave to appeal, pursuant to ss 52-53 of the Crimes (Appeal and Review) Act 2001 (“the CARA”) and challenged a conviction recorded by Magistrate Degnan on 8 February 2022 and a sentence imposed by his Honour on 11 July 2022. It is unnecessary to say anything about the conviction appeal as it was withdrawn or abandoned on the second day of the hearing. The orders I made were as follows:

“(1) Noting that the appeal against the conviction and/or application for leave to appeal against the conviction is withdrawn, that application or appeal is dismissed.

(2) Leave to appeal against the sentence granted.

(3) The appeal against sentence is upheld and the sentence imposed by the Local Court on 11 July is set aside.

(4) In lieu thereof, the appellant is sentenced to an aggregate term of imprisonment 2 years to be served by way of an intensive corrections order with the following conditions pursuant to ss 73 and 73A of the Crimes (Sentencing Procedure) Act 1999:

(i) The appellant must not commit any offence.
(ii) The appellant must submit to supervision by a community corrections officer.
(iii) the appellant must taken part in a rehabilitation programme directed towards anger management.

(5) For the purpose of s 53A(2)(a), I indicate that the individual sentences I would have imposed had an aggregate sentence not been imposed are 20 months for the first offence and 12 months for the second offence.

(6) Costs are reserved and the parties have leave to approach my associate with consent orders relating to costs.”

The facts

4. While some additional evidence was called when the matter was heard for a second time in the Local Court, the factual circumstances summarised by Rothman J in April 2020 are sufficient for the purpose of this judgment:

“12. The appellant owns a mobile petting zoo and, for that purpose, owns various animals, including a camel, named ‘Alice.’ At about 3 AM on 16 January 2016, two dogs entered the property where the camel was located, in its pen, and attacked the camel, causing it significant injuries to its legs, throat and face.

13. A witness, Ms Doel, was very concerned that the camel might die. Ms Doel was told by the appellant that ‘two dogs had jumped up, and they were hanging off her neck, and that they wouldn’t let her go, and he had to beat them off with a pole.’

14. The appellant captured one of the dogs, a mature, Bull Terrier type breed and tied it to a tree. Ms Doel’s evidence was that the dog was ‘fairly submissive’ at this time.

15. The first charged act of cruelty occurred some 20 minutes after the attack on the camel, when the appellant stabbed the dog at least six times with a pitchfork. At this stage, the dog, as indicated above, was sitting, subdued and tied to a tree. The appellant then started to drive to a vet to obtain pain medication for the camel, leaving the pitchfork in the dog.

16. The second charged act of cruelty occurred, after the appellant returned to the premises from the veterinary surgery, when the appellant realised that the dog was still alive. The appellant suspended the dog from a tree and beat it across the head between 6 and 8 times, with a mallet. During this second charged act of cruelty, the appellant said, according to Ms Doel, ‘I will make sure it’s dead.’

17. The dog died and was buried on Crown land adjacent to the farm. The appellant instructed Ms Doel not to speak of the events of that morning and that she should never tell anyone that she had seen dogs.

18. The dog that was injured and killed had a collar and microchip and, therefore, according to the Magistrate, was “at one stage” a domestic animal. Nevertheless, there was no evidence of current ownership at the time of the proceedings or at the time of the conduct that gave rise to the charges.

19. Dr Tong, a registered veterinarian and forensic diagnostic pathologist, conducted a necropsy on the exhumed remains. Dr Tong opined that the injuries to the animal were likely to cause prolonged suffering and the infliction of blows in that manner was not consistent with the humane “extinction” of a dog.”

The offence, maximum penalty and assessment of the objective seriousness of the offending

5. Each of the offences was charged under s 530 of the Crimes Act 1900 which provides relevantly:

530 SERIOUS ANIMAL CRUELTY

(1) A person who, with the intention of inflicting severe pain -

(a) tortures, beats or commits any other serious act of cruelty on an animal, and
(b) kills or seriously injures or causes prolonged suffering to the animal,

is guilty of an offence.

Maximum penalty--Imprisonment for 5 years.
...

(2) A person is not criminally responsible for an offence against this section if-

(a) the conduct occurred in accordance with an authority conferred by or under the Animal Research Act 1985 or any other Act or law, or
(b) the conduct occurred in the course of or for the purposes of routine agricultural or animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice.

(3) In this section--

"animal" means a mammal (other than a human being), a bird or a reptile.

"kill or seriously injure" an animal includes, in the case where the animal is used as a lure or kill in the manner referred to in section 21 (1) (d) of the Prevention of Cruelty to Animals Act 1979 , cause or permit a dog to kill or seriously injure the animal.

"serious act of cruelty" on an animal includes the act of using the animal as a lure or kill in the manner referred to in section 21 (1) (d) of the Prevention of Cruelty to Animals Act 1979.

6. The section has been amended to provide for an alternative offence based on proof of recklessness rather than specific intention and to expose an offender to a lesser maximum penalty (3 years): s 530(1A). That section did not come into operation until 3 July 2017 and was not relevant to the offences charged against the plaintiff.
7. The Court of Appeal held that the offence charged against the plaintiff required proof that he had a specific intention to inflict severe pain on the dog, that proof of recklessness was not sufficient, and that the Prosecutor was required to exclude the possibility that Mr Brighton intended to kill the dog as quickly as possible, albeit that this may entail some pain to the dog: Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 per Bell P at [100]-[101].
8. As “unpalatable” as the facts of the case were, the President (as the Chief Justice then was) expressed “acute” “disquiet” that the element of specific intention to inflict pain was established and the alternative thesis was excluded: supra. Simpson AJA at [141] shared his Honour’s concern that the essential element of specific intention may have been overlooked. Bell P put it as follows:

“100. It is arguable that the respondent’s undoubted intention to kill the dog did not encompass or entail an actual, subjective intention to inflict severe pain on it as opposed to an intention to kill it as quickly as possible, even if this necessarily entailed a degree of pain to the dog. In this context, the primary judge observed the following at [130], in relation to the method used by the respondent to kill the dog:

‘There is no evidence before the Court as to whether, at the time of these events, the appellant had any other method available to him of killing the dog. There is no evidence that the appellant possessed a weapon, such as a gun, or possessed bait, of some description.’

That is to say, as unpalatable as the subject matter is, the fact that the respondent used a pitchfork repeatedly and then, on the second occasion, a mallet repeatedly to kill the dog may not necessarily be indicative of an ‘intention of inflicting severe pain’ as opposed to an intention to kill the dog as quickly as possible (perhaps motivated, in the first instance, by retribution for the attack on the camel) and, in the second instance, to put the dog out of any pain by killing it quickly, having thought that he had already killed it on the earlier occasion. It is also possible that the respondent’s intention may have differed as between the first and second charges.

101. My disquiet is acute in circumstances where, in the course of his sentencing remarks, the magistrate made no finding that the killing of the dog was gratuitous and there is some basis, having regard to the transcript of the sentencing remarks, for thinking that the magistrate did not regard the killing of the dog as a gratuitous act of cruelty although the matter is not entirely clear. That doubt raises a large question as to whether the magistrate could have been satisfied beyond reasonable doubt as to the respondent’s subjective ‘intention of inflicting severe pain’ on the dog as opposed to having had a simple intention to kill it as a response to its attack on the respondent’s camel, or to put it out of its misery in the circumstances of the second charge where the respondent discovered, apparently to his surprise, that the dog was not already dead.”

9. I refer to these matters to emphasise the things which are taken to have been proved to establish the offences with which the plaintiff was sentenced by Degnan LCM. In abandoning the appeal against conviction, the plaintiff necessarily and formally admitted those things. It is within those parameters that the objective seriousness of the two offences was to be evaluated. That evaluation, in turn, informed a proper consideration of the appropriate sentence in all the circumstance and whether the sentence imposed by the Magistrate was so unreasonable and disproportionate as to be amenable to the kind of appeal contemplated in ss 52-53 of the CARA.
10. The offences each carried a maximum penalty of 5 years, but the penalty in each instance was constrained by the Local Court’s jurisdictional limit of 2 years.
11. Once it is accepted that the plaintiff had the requisite intention, there is little doubt that the offences were extremely serious offences of their kind and exhibited a degree of barbarity at odds with the plaintiff’s previous good character and history of employment in caring for animals.
12. In terms of their relative objective seriousness, the offences are towards the top of the range of offences under s 530 which might be dealt with summarily. This observation applies with particular force to the first offence, where the means of inflicting the pain was particularly barbaric and where the plaintiff failed to ensure the dog was dead before leaving it to endure the pain over an extended period of time. While the evidence suggested the plaintiff may have believed the dog was dead after being struck and stabbed several times with a pitchfork, the need to kill the dog was questionable (it having been restrained and tethered to a tree). Further, assuming the plaintiff believed that killing the dog was necessary or appropriate, he failed to ensure that the dog was dead and left it there to suffer. It is impossible to escape the conclusion that Mr Brighton’s motivation was, at least in part and in those moments, to cause the dog to suffer as an act of retribution or vengeance. While the second offence was also very serious, the means of inflicting the pain was less brutal and the plaintiff ensured that the dog was dead.
13. Having said those things, this was not a case where an offender inflicted cruelty on an animal in a factual void or vacuum. The incident would not have occurred had the dog(s) not attacked Alice the camel. While the learned Magistrate was at pains to categorise the offending, and the infliction of pain, as “gratuitous”, I was not convinced that this descriptor was particularly apposite in the circumstances. I accepted (beyond reasonable doubt) that the plaintiff acted in an angry rage and was seeking vengeance against the dog, but that state of mind arose out of circumstances beyond his control and, no doubt, because of his care and concern for the camel. The case is far removed from, and readily distinguishable from, cases where animals are tortured for the pleasure or amusement of the perpetrator(s): see, for example, Berryman v R; Wood v R [2018] NSWDC 486 (“Berryman & Wood”).
14. While the Magistrate said that the plaintiff’s case was “easily distinguishable” from Berryman & Wood, the distinction his Honour drew concerned the fact that plaintiff was older than those offenders and, because of his qualifications and experience with animals, better placed to appreciate the suffering he was causing to the dog. It was also the case that the offenders in the earlier case pleaded guilty. In the result, Magistrate Degnan imposed a sentence that was considerably more than double the sentence imposed on the young offenders in Berryman & Wood on an appeal to Judge King SC in the District Court. While the sentences imposed in one single past case cannot be used to determine the appropriate sentence in the plaintiff’s case, this is – to say the least – a very surprising result. That is particularly so when the sentencing Magistrate referred to the earlier judgment at a little length. The reader can see the extent of the criminality in Berryman & Wood by referring to Judge King’s reasons but, in a nutshell. the offenders made a video recording of the horrific incident in which one of them tortured a small, wounded grey kangaroo with a knife while taunting and laughing at the animal. There was nothing to suggest the kangaroo had done anything to provoke this sadistic and outrageous conduct.

Subjective case

15. It is not necessary to say much about the plaintiff’s personal circumstances to understand the defendant’s concession that the sentence imposed by Magistrate Degnan was manifestly excessive.
16. The plaintiff was 27 years old when he committed the offences and 33 by the time he came to be sentenced. He had a bachelor’s degree in animal science and several other qualifications in the field of zookeeping, animal husbandry and welfare. He had done volunteer work as a wildlife rehabilitator and undertaken a zookeeper internship at Taronga Zoo. While this was, legitimately, taken into account in assessing the plaintiff’s conduct and mens rea, it appears also to have been used to aggravate the offending and not considered as mitigating circumstances in any meaningful way.
17. The plaintiff had no relevant criminal record; the sentencing assessment report said he had “one driving related charge from 2007”. He presented as a person of good character with impeccable character references. Four excellent testimonials from well qualified referees who worked in the field of animal care were tendered on the plaintiff’s behalf. There had been a lengthy delay between the time of the offence and the time he came to be sentenced on the second occasion.

The sentence imposed was manifestly unreasonable and plainly unjust

18. As Gleeson CJ and McHugh J said in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] whether a sentence is manifestly excessive is a conclusion; a sentence is either manifestly excessive or it is not:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

19. However, in reaching such a conclusion, an appellate court must not substitute its own opinion for that of the sentencing Court and proceed on the basis that there is no single correct sentence and that sentencing judges (and Magistrates) “are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”: Markarian v The Queen (2005) 228 CLR 357; HCA 25 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ.
20. What must be established is that the sentence under review was “unreasonable or plainly unjust”: was the sentence “manifestly wrong?”: Dinsdale v The Queen at [22] (Gaudron and Gummow JJ) citing House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.
21. A consideration of those and other authorities demonstrates that that an appeal based on this ground does not require the identification of specific legal error but that an appellant has a reasonably high bar to hurdle in order to show that something serious must have gone wrong in the sentencing process.
22. In considering the available maximum penalty and the objective circumstances of the present offences and balancing those things against the fact that the plaintiff was (basically) a first offender with good character and whose conduct was, for want of a better word, “provoked” by the savage attack on his camel, I had no hesitation in accepting the concession made by the extremely experienced counsel who appeared for the RSPCA that the sentence imposed by the Magistrate was manifestly wrong, unreasonable and plainly unjust.
23. As to sequence 1, Magistrate Degnan said he would have imposed a sentence of “around 30 months” (2½ years) full-time imprisonment. Because that sentence exceeded the Local Court’s jurisdictional limit, his Honour imposed a sentence of two years. That was far in an excess of an appropriate discretionary range when all matters relevant to sentencing are considered.
24. His Honour did not nominate an appropriate sentence for sequence 2, merely stating:

“similarly, I am satisfied that the appropriate sentence would have exceeded my jurisdiction of two years and therefor I am limited to that being the indicative sentence.”

25. Putting aside the question whether that was a legally correct approach (which I doubt very strongly), an indicative full time gaol sentence of two years for the second offence was patently unreasonable and unjust.
26. As the defendant pointed out in its written submissions, the appeal is against the aggregate sentence of 38 months (three years and two months) and not against the individual indicate sentences. However, where the indicative sentences are infected with error, that is a matter bearing upon whether the aggregate sentence is wrong or also infected with error. Where there are two indicative sentences each of which falls well outside of an appropriate discretionary range and where, as here, there has been a substantial degree of notional accumulation, it is close to inevitable that that the aggregate sentence is wrong.
27. Considering the totality of criminality over the two offences, which was objectively very grave, taking account of the plaintiff’s personal case and prior good character, and the very specific situation in which these offences were committed and the factual and temporal connection between them, I was and remain satisfied that the aggregate sentence was manifestly excessive in the sense that it was unreasonable, unjust and plainly wrong.
28. Accordingly, I agreed with the joint position of the parties that the sentence imposed by the Magistrate should be set aside and/or varied: CARA, s 55(2).

Disposition and re-sentencing

29. In considering the appropriate order, it was necessary either to exercise the sentencing discretion afresh (and vary the sentence) or to remit the matter to the Local Court. In view of the lengthy history of the matter and the desirability that the matter reach conclusion, I agreed with the parties that the best approach was to re-sentence the plaintiff or, in the terms of s 55(2)(b), vary the sentence.
30. I considered all matters, as far as they are known, relevant to the exercise of the sentencing discretion.
31. I considered the reasons of Rothman J and the sentence his Honour considered would have been appropriate noting that those reasons were obiter and not binding in any event. I also considered the additional evidence given at the re-hearing although, unlike the position that seemed to be taken by Magistrate Degnan, I was not persuaded that this evidence made any significance difference to the appropriate sentencing disposition.
32. After a little hesitation, I accepted the plaintiff’s implicit concession that the “threshold” in s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed; that is, having considered all possible alternatives, no penalty other than imprisonment was appropriate. The conduct engaged in was savage, cruel and unjustified. Despite the background circumstances, in which the dogs savagely attacked Alice the camel, the plaintiff’s conduct was morally reprehensible and warranted stern punishment.
33. While my view is that an aggregate sentence is not generally appropriate in cases involving just two offences, a view that is guided by the advantage of transparency, I acted on the parties agreed position that an aggregate sentence should be imposed. This also reflected the approach taken by the Magistrate.
34. For the reasons outlined at [12], I considered the first offence to be more serious, objectively, than the second. The means of inflicting the harm to the dog was less savage and the plaintiff ensured that the dog was dead so that its suffering was of much shorter duration in the second offence.
35. My view was that the appropriate indicative sentence for sequence one was, as Rothman J concluded and the parties urged upon me, 20 months. I differed in my assessment of the appropriate sentence for sequence two and nominated an indicative sentence of 12 months for that offence.
36. Because of the separation in time between the two offences, I took the view that it was appropriate for there to be a modest degree of (notional) accumulation. However, the offences were essentially part of the same course of conduct and, had an aggregate sentence not been imposed, the sentences would have been largely concurrent.
37. For those reasons, I agreed with the joint position of the parties and the conclusion of Rothman J on slightly different evidence, that the appropriate aggregate sentence was one of two years imprisonment.
38. Having considered the matter in accordance with the legislative scheme and the decision of the High Court in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, I agreed with the parties’ joint position that it was appropriate that the sentence be served in the community by way of the imposition of an ICO.
39. The learned Magistrate commented – somewhat gratuitously given that an ICO was not an available alternative because of the length of the sentence his Honour imposed – that “even if an ICO were available, the objective seriousness of this offence calls for a fulltime sentence”. His Honour also said the plaintiff was “unlikely to re-offend, and I would be unable to find that an ICO would be more likely to address his risk of re-offending”. While the predictive finding (that the plaintiff is unlikely to re-offend) was clearly correct based on the sentencing assessment report and character references, I respectfully (but entirely) disagree with Magistrate Degnan’s conclusion that an ICO would therefore not be “more likely to reduce his risk of re-offending”. In reaching this conclusion, which was superfluous in the circumstances, his Honour made no reference to the references which spoke of the plaintiff’s love of and care for animals, his career in the industry, and the likelihood he would be unable to work in the field because of the convictions. A targeted ICO, with supervision, was much more likely than a prison sentence to address any risk that the plaintiff would re-offend.
40. Accordingly, I agreed that the two-year sentence of imprisonment should be served by way of an ICO. Such a sentence must commence on the day it is imposed.

Conclusion

41. Those are the reasons that, at the parties’ invitation, I made the orders set out in paragraph [3] above at the conclusion of the hearing on 13 December 2023.

A note of caution concerning the appropriate avenue of appeal

42. What follows should not be read by the parties as indicating any view on the issue of costs, which are reserved and in relation to which it is expected that the parties will reach agreement. Rather, what follows are obiter comments calculated to ensure litigants are properly advised as to the most appropriate avenue of appeal from decisions in criminal cases which are dealt with summarily in the Local Court.
43. When a party is aggrieved by a decision made by the Local Court in a criminal case, there are two potential avenues of appeal.
44. An appeal to the District Court involves a rehearing, generally on the same evidence received by the Magistrate.^[2] However, “fresh evidence” can be received in appeals against sentence.^[3] Fresh evidence can be received in conviction appeals if the District Court gives leave.^[4] There are also restrictions on evidence being given in person and a direction to that effect can only be given if there are “special reasons ... in the interests of justice” why such evidence should be given.^[5] A District Court judge hearing such an appeal can revisit factual findings and it is not incumbent on the appellant to identify legal error in the decision below and litigants are not restricted to arguing the appeal based on identified grounds of appeal.
45. Conversely, there is no appeal to this Court as of right unless the appeal is based “on a ground that involves a question of law alone”. If the ground involves a question of fact or a question of mixed law and fact an appeal is predicated on a grant of leave by this Court.^[6] Fresh, new, or updated evidence will rarely, if ever, be received.
46. The CARA prevents an appellant from pursuing both avenues of appeal. Section 29 provides relevantly:

29 LIMITS ON APPEALS

(1) No appeal may be made to the District Court under this Part against a decision of the Local Court--

(c) that is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5.

(2) Subsection (1) (c) does not prevent a person who has made an appeal or application for leave to appeal to the Supreme Court under Part 5 from making an appeal or application for leave to appeal to the District Court under this Part if--

(a) the Supreme Court has remitted the matter on appeal to the Local Court for redetermination, and the Local Court has redetermined the matter, or

(b) the Supreme Court has refused leave to appeal in relation to an appeal made on a ground of mixed law and fact.

47. Without attempting to identify them, there are many reasons why this Court might refuse to grant leave in a case involving questions of fact or grounds of mixed law and fact. While sub-s 29(3) may theoretically allow an appeal then to be pursued to the District Court, the practical reality is that by the time leave is refused the time limit to appeal to the District Court (even with leave) will probably have expired.^[7]
48. Another matter that must be considered carefully in sentence appeals is the nature of the ground asserted. A ground such as the one pursued in the present case – that the sentence was manifestly excessive – requires the appellant to establish manifest unreasonableness in the sentence. A judge of this Court deciding an appeal under Part 5 is not permitted to uphold an appeal on the basis that they would have imposed a substantially less severe sentence had they been the sentencer at first instance. The limitations on such a ground are emphasised in many cases decided in the Court of Criminal Appeal under the different legislative scheme that controls that court’s jurisdiction.
49. By contrast, when the District Court is exercising jurisdiction under Part 3, the judge essentially hears the sentencing proceedings afresh and, if they would have imposed a shorter sentence or a non-custodial alternative, they must intervene. In reaching their conclusion the judge can consider fresh evidence. There is no requirement of manifest legal error or a need to establish that the sentence is plainly wrong or unjust, and no need to pay deference to the important role of a sentencing judge and the axiom that there “is no single correct sentence”.
50. Finally, the cost of litigating in this Court is likely to be much higher.
51. Having said those things, where there is a clear error of law or where, as here, the sentencing discretion has miscarried in a fundamental or serious way, it may be appropriate that this Court correct the record by resolving an appeal pursuant to Part 5 of the CARA. However, cases where a sentence appeal should be brought to this Court, rather than to the District Court, are likely to be relatively rare in the absence of an identified and specific legal error.

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Amendments

12 January 2024 - Typographical amendment to [23]. Changed spelling of "Local Court's jurisdiction".

16 January 2024 - Cover page content amended.

Typographical amendment to [51]. Changed spelling of "specific".

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^[1] See Will v Brighton [2020] NSWSC 435 (Rothman J), Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 and Will v Brighton (No 2) [2021] NSWCA 8.
^[2] Crimes (Appeal and Review) Act 2001, ss 17-18.
^[3] Crimes (Appeal and Review) Act 2001, s 17.
^[4] Crimes (Appeal and Review) Act 2001, s 18.
^[5] Crimes (Appeal and Review) Act 2001, s 19.
^[6] Crimes (Appeal and Review) Act 2001, s 53.
^[7] Crimes (Appeal and Review) Act 2001, ss 11(2)(a), 12(3) and 13(2).