› Crown appeal against sentence — manifest inadequacy
Criminal law
› Appeals
› Standard of appellate review — factual findings in sentencing appeals — whether finding reasonably open
Criminal law
› Sentencing
› Objective seriousness — absence of aggravating features — not mitigating
Criminal law
› Sentencing
› Sexual intercourse without consent — knowledge versus recklessness as to lack of consent
Quick Take
1The test for appellate review of a factual finding in a sentencing appeal is whether the finding was 'reasonably open' — that is, whether the tribunal of fact could rationally reach that conclusion — and this applies to both findings of primary fact and inferences drawn from them; the earlier decision in Duong v The Queen is overruled to the extent it suggested the Warren v Coombes 'correctness standard' applies to sentencing appeals.
2A 'mistake of fact' sufficient to satisfy the House v The King standard is not confined to errors in the fact-finding process that constitute errors of law, but nor does it permit an appellate court to substitute its own view merely because a different conclusion was possible; the standard is relatively low and requires the impugned finding to be material to the sentence.
3Reference by a sentencing judge to the absence of aggravating features does not necessarily constitute the error of treating their absence as mitigating; such references are permissible where they serve to place the offending on the spectrum of objective seriousness, provided the judge does not expressly or implicitly treat the absence as a mitigating factor, fail to assess the features actually present, or adopt a mechanistic approach of incremental reduction.
Case Details
Citation[2026] NTCCA 3
CourtNTCCA
JurisdictionNorthern Territory
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