Appealing a Sentence | House v The King

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Case Files Bankrupt and Bath Heaters

The case of House v The King (1936) 55 CLR 4991 details the court’s authority to interfere with an exercise of discretion and whether the exercise of discretion is dependent upon the demonstration of one or more of certain kinds of error. The High Court fundamentally laid down the principle of sentencing discretion and listed the five errors that would cause an appellate Court to intervene and quash a sentence. 

Facts of the Case

The appellant, Mr House, was charged under s 210(3)(c) of the Bankruptcy Act 1924–1933 that he, being a person against whom a sequestration order was made, did within six months before the presentation of the petition on which the sequestration order was made, pawn, otherwise than in the ordinary way of his trade, property, namely two bath-heaters, which he obtained on credit from A N Thomson & Co Ltd, and had not paid for. 

The primary judge in the Court of Bankruptcy, his Honour Judge Lukin, sentenced him to three month’s imprisonment with hard labour. Mr House, disagreeing with the severity of his sentence, appealed to the High Court. 


The High Court in dismissing the appeal, held that an appellate court would not intervene just because they would have handed down a sentence elsewhere within the range. The 

court held that it must appear that some error has been made in exercising the discretion. 

The majority comprising of Justices Dixon, Evatt and McTiernan identified the following errors that would lead the appellate court to exercise its own discretion in substitution for that of the sentencing judge at [505]:

  1. acted on a wrong principle; allowed extraneous or irrelevant matters to guide or affect him;2
  2. mistakes the facts;3
  3. does not take into account some material consideration; 4 or
  4. the sentence is unreasonable or unjust.5

The court held that although Mr House’s sentence was severe, it was not unreasonable or clearly unjust and did not arise from any relevant error. The court found that the judge had appropriately exercised his discretion as to the sentence. Therefore, the Court was unable to interfere with the primary judge’s decision. 

Key Statements of the Case

Justices Dixon, Evatt and McTiernan joined their judgment, treating sentencing as involving the exercise of ‘judicial discretion’. Drawing upon English and Australian authorities, they raised an issue in [205]-[505]:

“The judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principlesIt 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. 6

 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.7

“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 the 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”.8 

For the purposes of context, the permissibility for allowing an appeal from a discretionary judgment may be categorised into compromised rules, such as specific error (legal or factual), or an inferred error. The court may also intervene in the circumstance where the decision was unreasonable or plainly unjust. Furthermore, if permission to appeal is granted, the Appeal Bench may do any of the following concerning the appeal e.g. confirm, quash or vary the decision, make a further decision in relation to the matter that is being appealed and refer the matter being appealed to a Commission Member for further action. 

Key Takeaways from the Case

Essentially, this case states that the appellant must establish that the sentencing judge has made an error in the exercise of his or her discretion and that if there is no identifiable error, but if upon the facts the exercise of discretion is ‘unreasonable or plainly unjust9 an appeal court may infer that the judge has failed to properly exercise his or her discretion on the grounds that a substantial wrong has occurred.

Significance of the Case

The joint majority judgment gave rise to what is generally regarded as the ‘House errors’. The discretionary errors outlined in House v The King (1936) are, to the present day, being applied in courts to determine whether appellate courts ought to interfere with lower court sentencing. The several different contexts where the rules from House are being applied in include:

  • Criminal Settings;
  • Civil Penalties;
  • The Quantum of Damages;
  • Custody and Family Law Proceedings;
  • Apportionment of Responsibility;
  • Industrial Relations;
  • Granting Relief Following Judicial Review;
  • Costs;
  • The Valuation of Property; and
  • Other general matters of legal procedure. 

The above list is not exhaustive.

[1] HCA 40; 10 ALJR 202; 55 ALR 499; 9 ABC 117.

[2] House v The King (1936) 55 CLR 499 at 504-505.

[3] House v The King (1936) 55 CLR 499 at 504-505.

[4] House v The King (1936) 55 CLR 499 at 504-505.

[5] House v The King (1936) 55 CLR 499 at 504-505.

[6] House v The King (1936) 55 CLR 499.

[7] House v The King (1936) 55 CLR 499.

[8] House v The King (1936) 55 CLR 499.

[9] House v The King (1936) 55 CLR 499 at 504-505.

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