Realist Law - Criminal Lawyers Brisbane

Sentencing Discretion – Appealing

In CDX V Queensland Police Service [2017] QDC 96, the famous case of House v The King [1936] HCA 40 was considered. 

In House v The King [1936] HCA 40, 

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred

So, an appeal against sentence has better chance of success if one of the following can be established, 

  1. Acted on a wrong principle
  2. Was guided by extraneous or irrelevant facts
  3. Mistook the facts
  4. Failed to take into account a material consideration
  5. Imposed a sentence manifestly unreasonable, or plainly unjust


I am not an admitted lawyer. These contents are simply what I have learned during my work experience duty and through study. Please DO NOT consider any of my content as advice.