HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJR H McL APPELLANT
AND
THE QUEEN RESPONDENT
R H McL v The Queen [2000] HCA 46
31 August 2000
M95/1999ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation:
P F Tehan QC with C B Boyce for the appellant (instructed by Leanne Warren & Associates)
W H Morgan-Payler QC with C J Ryan for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
R H McL v The Queen
Sentencing – Power of Court of Appeal to re-sentence on remaining convictions after quashing some convictions – Counts properly joined – No appeal against sentence by either Crown or appellant – Principles of proportionality and totality – Whether Court of Appeal had power to increase the sentences of the appellant on the remaining convictions – Whether Court of Appeal gave adequate reasons for increase in sentence – Whether substituted sentence ordinarily subject to ceiling on total punishment so appellant not exposed to risk of increased punishment following a successful appeal.
Words and phrases – "totality principle", "ceiling principle".
Crimes Act 1958 (Vic), s 569(1).
Sentencing Act 1991 (Vic), s 16(3A).
GLEESON CJ, GAUDRON AND CALLINAN JJ. The principal issue in this appeal concerns the meaning and application of s 569(1) of the Crimes Act 1958 (Vic), a provision which has counterparts in other Australian jurisdictions, and which gives power to the Court of Appeal in a criminal appeal, in certain circumstances, to re-sentence an appellant who has been convicted of multiple offences and who appeals successfully against some of his convictions. There is a subsidiary issue as to whether, in the present case, there was a failure by the Court of Appeal to comply with the requirements of procedural fairness.
The offences and sentences
In August 1997, following a trial before Judge Harbison and a jury, in the County Court at Melbourne, the appellant was convicted of a number of offences against his two step-daughters, A and B. The offences against A occurred over a period between 1988 and 1996. She was aged from 11 to 19 over the period. The victim B was aged from 11 to 15 over the period of the offences against her. The appellant was convicted of eight offences of incest, four offences of causing A to take part in an act of prostitution, one offence of rape, two offences of gross indecency, and one offence of indecent assault.
The maximum penalty for incest was imprisonment for 20 years; the maximum for rape was (in the circumstances) treated by the sentencing judge as being 10 years; the maximum for causing a child to take part in an act of prostitution was 7 years; the maximum for indecent assault was 5 years; the maximum for an act of gross indecency was 3 years.
The counts against the appellant were joined in a single presentment. It is not suggested that this was inappropriate. The jury found the appellant guilty on counts 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 16, 18, 19, 20, 23 and 24.
By virtue of s 16 of the Sentencing Act 1991 (Vic), the sentences imposed in respect of counts 3 and 4 were to be served concurrently. By virtue of
s 16(3A) of the Sentencing Act, as it then stood, by reason of the sentences imposed in respect of counts 3 and 4, the appellant became a serious sexual offender, which meant that, unless the sentencing judge exercised her discretion to the contrary, the sentences imposed in respect of the remaining counts (except counts 8, 9, 12, 16, 18 and 19) would be served cumulatively.The sentences imposed were as follows: count 2 – 9 months; count 3 – 12 months; count 4 – 12 months; count 5 – 12 months; count 6 – 18 months; count 8 – 18 months; count 9 – 3 months; count 10 – 18 months; count 11 – 18 months; count 12 – 12 months; count 16 – 12 months; count 18 – 24 months; count 19 – 24 months; count 20 – 24 months; count 23 – 12 months; count 24 – 6 months. Her Honour ordered that the sentences imposed in respect of counts 2 and 3 be served concurrently; that the sentences imposed in respect of counts 8 and 9 be served concurrently; that the sentences imposed in respect of counts 10 and 11 be served concurrently; that the sentences imposed in respect of counts 18, 19 and 20 be served concurrently; and that all other sentences should be cumulative. The total effective sentence was 12 years imprisonment. A non-parole period of 10 years was fixed.
In her remarks on sentence, Judge Harbison found that the effects of the appellant's behaviour upon A and B "must have been devastating".
Her Honour, having set out the sentences and recorded that the total sentence was 12 years imprisonment, said:
"In my view that is an appropriate sentence taking into account the total criminality of your behaviour. It is what I consider to be proportionate to the gravity of [the] offences concerned considering them in the light of the evidence I have detailed about the circumstances of their commission and being aware of the need not to impose a crushing sentence upon you having regard to your age and circumstances."
The age of the appellant was forty-four. He was an invalid pensioner.
The appeals
On 27 August 1997, the appellant applied for leave to appeal against the convictions and sentences. On 14 September 1998, the appeals came on for hearing. During the course of argument, the court gave counsel for the appellant an indication of a view as to the sentences that had been imposed upon the appellant, and reminded counsel that, under s 568(4) of the Crimes Act, on an appeal against sentence the Court of Appeal had power to increase the sentence imposed at first instance. The appellant's response, after taking legal advice, was to apply for leave to abandon the application for leave to appeal against the severity of the sentences. Leave was given. Argument continued in relation to the appeal against the convictions. In the course of further argument, a question was raised as to the effect upon sentence if the Court of Appeal were to quash the convictions on some counts, but not others. Counsel for the respondent submitted that, in that event, the case could be dealt with under s 569(1). The Court of Appeal reserved its decision.
The Court of Appeal, a few days later, notified counsel that the matter would be re-listed for further argument as to the possible application of s 569(1). On 21 September 1998 the Court re-convened, and heard submissions from counsel for the parties as to its powers under s 569, and as to the course it should take in the light of those powers.
The decision of the Court of Appeal[1]
[1]R v R H McL [1999] 1 VR 746.
The application for leave to appeal against the convictions was directed to all counts on which the appellant was convicted. Only one argument was successful. It concerned a misdirection given by the trial judge about the use the jury could make of certain evidence in relation to the alleged offences against the victim B. There were five such alleged offences. The misdirection affected four of them (those the subject of counts 2, 5, 6 and 23). It did not affect the other count involving B, count 11 (incest).
The leading judgment was written by Batt JA, with whom Phillips CJ and Kenny JA agreed. The Court of Appeal decided to quash the convictions on counts 2, 5, 6 and 23 and to order a new trial on those counts. The remaining convictions stood. Having dealt with the matter of the convictions in his reasons, Batt JA turned to the question of sentence. He pointed out[2] that the effect of quashing the four convictions, if no further order were made, would be to leave a total effective sentence of 8½ years, with a non-parole period of 10 years. It was obvious that there was a need to alter the non-parole period, and it was agreed that s 569(1) conferred power to do that[3]. The area of contention concerned the head sentence.
[2][1999] 1 VR 746 at 774.
[3][1999] 1 VR 746 at 775.
For reasons which he explained, Batt JA concluded that the individual sentences, and the total effective sentence of 8½ years, for the convictions which stood, were manifestly inadequate. That conclusion was well open as a matter of discretionary judgment, and no attempt was made in this Court to suggest otherwise, or to suggest that there was any error in the reasoning by which Batt JA reached that conclusion.
Indeed, the conclusion was almost inevitable because of the way the original sentences had been structured. The principle of totality which Judge Harbison applied is well recognised. It was stated in Thomas, Principles of Sentencing[4], in a passage quoted with approval by this Court in Mill v The Queen[5] in the following terms:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'."
[4]2nd ed (1979) at 56.
[5](1988) 166 CLR 59 at 63.
In Mill[6] this Court said:
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
[6](1988) 166 CLR 59 at 63.
The reason for the concluding observation appears from the judgment of Ormiston JA in R v Lomax[7].
[7][1998] 1 VR 551 at 562-563.
It is apparent that Judge Harbison, at least in part, followed the second of the two courses referred to in Mill. For example, the individual terms of imprisonment set for some offences of incest were 12 months, and that for one of the offences of child prostitution was 12 months. Sentences of that level were obviously influenced by considerations of totality. In the result, when four of the convictions were quashed, the sentences for the remaining convictions were likely to be, and were found to be, manifestly inadequate.
In expressing his reasons for the conclusion of manifest inadequacy, Batt JA said[8]:
"I regard counts 10 and 11, where incest was committed upon each stepdaughter in the presence of the other alternately, as particularly serious instances of the crime. The offence constituted by count 20, committed in the presence of two men with whom [the victim] had been forced to prostitute herself, was also a very serious instance of the crime. It is scarcely possible to imagine a worse offence of gross indecency than that committed by the applicant, involving, as it did, forced cunnilingus of the victim's mother. Child prostitution is a serious offence. The four instances of it here, committed against a stepdaughter, are serious indeed. The offences the subject of counts 18 and 19, in which two men were involved on the same occasion and which the applicant video-recorded, are heinous."
[8][1999] 1 VR 746 at 779.
This Court was told, in the course of argument, that, for a total effective sentence of 8½ years, it might be expected that a non-parole period of the order of 5 years would be fixed.
It was in those circumstances that Batt JA, addressing the provisions of
s 569(1), declined to affirm the sentences passed upon the appellant and merely fix a new non-parole period. He preferred the alternative, offered by the section, which was that the Court of Appeal should pass such sentences, in substitution for the original sentences on the counts for which the convictions stood, as it thought proper.One of the matters which Batt JA took into account was the new trial that was proposed in relation to the four counts in respect of which convictions were quashed. In that connection, he referred to a remark made by Aickin J in Ryan v The Queen[9] to the effect that it can seldom be appropriate to use s 569(1) in a case where a new trial has been ordered under s 568(2). Batt JA said[10]:
"His Honour was concerned that, if the accused were to be convicted on the new trial, the trial judge would then impose a sentence appropriate to that offence alone and would under the then legislation have been authorised to impose a sentence to commence on the expiration of the increased sentences by then being served on the remaining counts. But the legislation relating to the imposition of sentences has been changed since Ryan was decided. Now, in the ordinary case, unless otherwise directed by the court every term of imprisonment imposed on a person must be served concurrently with any uncompleted sentence of imprisonment imposed on that person, whether before or at the same time as that term: Sentencing Act 1991, s 16(1); and, in the case of a term of imprisonment imposed on a serious sexual offender for a sexual offence the court may direct otherwise than that it be served cumulatively on any uncompleted sentence of imprisonment imposed on that offender, whether before or at the same time as that term: s 6E of that Act as it now stands and s 16(3A) as it stood at the time of sentence. Moreover, since Ryan was decided the principle of totality and its method of implementation have been further expounded by the High Court in Mill v R[11]. Thus, the sentencing judge after the new trial, at any rate where, as here, service of the custodial portion of the sentences imposed on the remaining counts would not have been completed, would be able to achieve a sentencing disposition which did not infringe the principle of totality or crush the applicant. (I distinctly abstain from any comment as to what that sentence should be in the event of conviction.) Moreover, one must bear in mind that the new trial may result in acquittals. In that event, if the sentences on the remaining counts as they presently stand are manifestly inadequate and if this court has not passed another sentence, the anomaly created by the alteration of the overall sentence in consequence of the setting aside of convictions on some counts, the existence of which Brennan J demonstrated in Ryan[12], would remain." (emphasis in original)
[9](1982) 149 CLR 1 at 14-15.
[10][1999] 1 VR 746 at 777-778.
[11](1988) 166 CLR 59 at 63, 67.
[12](1982) 149 CLR 1 at 23-24.
The process of discretionary reasoning appearing in the above passage involved no error of principle. In the course of argument in this Court, references were made, not by counsel, but by members of the Court, to the decision in Gilmore[13] in which Street CJ[14] referred to a consideration which a judge, re‑sentencing after a second trial an offender who had earlier appealed successfully against the conviction at a first trial, ought to take into account. In brief, in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction. The weight to be given to that consideration depends, of course, upon the circumstances of the individual case. This would be a matter relevant to the exercise of discretion by a judge sentencing the appellant following convictions after a second trial on the four counts in question. It may well have been a matter which Batt JA had in mind when he expressly, and appropriately, declined to say anything that might pre-empt such an exercise of discretion. If it has a bearing either way, the decision in Gilmore operates against, rather than in favour of, the appellant in the present appeal, because it could be used to support an argument, of the kind foreshadowed by Batt JA, that the sentences imposed following a retrial should be made concurrent with the sentences imposed by the Court of Appeal. However, as Batt JA recognised, it is undesirable to say anything, at this stage, that would pre-empt an exercise of discretion at a future sentencing proceeding.
[13](1979) 1 A Crim R 416.
[14](1979) 1 A Crim R 416 at 419-420.
Having decided that the case was a proper one for the exercise of the power to re-sentence, Batt JA decided to follow Lomax[15]. Unlike Judge Harbison, he gave effect to what he called the principles of proportionality and totality, not by imposing individual sentences which were less than such as reflected the gravity of the individual offences, but by making substantial use of the discretion given by the legislation to order that such sentences be served concurrently. His Honour said[16] that he intended to propose individual sentences that were as nearly appropriate as the number of offences would permit, and then make them largely concurrent. For example, he said that count 8, for reasons he gave, should attract the maximum available custodial sentence of 2 years, and that counts 18 and 19 should each attract the nearest whole number of years to the maximum custodial sentence available. He also attached weight to what he described as considerations of double jeopardy but said[17]:
"In the particular circumstances of this case, however, the latter principle does not require that the total effective sentence resulting from the individual sentences now to be imposed after directions as to concurrency or cumulation be lower than the total effective sentence resulting from the individual sentences imposed by her Honour after such directions."
[15]See [1998] 1 VR 551 at 567-568.
[16][1999] 1 VR 746 at 779.
[17][1999] 1 VR 746 at 779-780.
He concluded[18]:
"I would therefore propose that, in substitution for the sentences passed on the appellant on the below-mentioned counts by her Honour, the appellant be sentenced to the following terms of imprisonment, namely:
Count 3 - Incest - 2 years; Count 4 - Incest - 2 years; Count 8 - Gross Indecency - 2 years; Count 9 - Indecent Assault - 2 years; Count 10 - Incest - 4 years; Count 11 - Incest ('B') - 4 years; Count 12 - Child Prostitution - 2 years; Count 16 - Child Prostitution - 2 years; Count 18 - Child Prostitution - 4 years; Count 19 - Child Prostitution - 4 years; Count 20 - Incest - 4 years; Count 24 - Incest - 2 years.
I would direct that the sentences imposed on counts 3, 4, 12, 16 and 24 be served concurrently on each other; that the sentences imposed on counts 8 and 9 be served concurrently on each other; that the sentences imposed on counts 10 and 11 be served concurrently on each other; and that the sentences imposed on counts 18, 19 and 20 be served concurrently on each other. I would direct that otherwise the sentences imposed by this court be served cumulatively upon each other. That makes a total effective sentence of 12 years' imprisonment. Having regard to the gravity of the offences, and the lack of rehabilitative prospects, I would fix a non-parole period of 10 years."
[18][1999] 1 VR 746 at 780.
The grounds of appeal
The grounds of appeal relied upon are as follows:
"(i)The Court of Appeal of the Supreme Court of Victoria erred in law in applying the provisions of s 569(1) of the Crimes Act 1958 (Vic) to the sentences imposed upon Counts 3, 4, 8, 9, 10, 11, 12, 16, 18, 19, 20 and 24 of the presentment.
(ii)The Court of Appeal of the Supreme Court of Victoria erred in law in failing to accord procedural fairness to the Appellant."
Ground (i)
Section 569(1) provides:
"If it appears to the Court of Appeal that an appellant, though not properly convicted on some count or part of the indictment … has been properly convicted on some other count or part of the indictment … the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment … on which the Court considers that the appellant has been properly convicted."
It is one of a number of provisions described by the heading: "Powers of Court in special cases". It follows s 568, which is headed: "Determination of appeals in ordinary cases". It was agreed in argument that, pursuant to s 568(4), if the application for leave to appeal against sentence had not been abandoned, the Court of Appeal would have had powers to make the orders it made in re‑sentencing the appellant. It was in an attempt to evade that possibility that the application was abandoned when the Court of Appeal began to express concern about the adequacy of the sentences.
Section 569(1) was considered by this Court in Ryan[19]. Stephen J observed[20] that, although the provision has been part of the law of Victoria for many years, and has its counterparts in the United Kingdom and other Australian jurisdictions, the occasions for its application have been rare. It was suggested in argument in the present case that the reason for that may be that ordinarily cases are dealt with under s 568(4), or corresponding provisions, and that it would be unusual to have a case where a problem of the present kind arose and there was no appeal against sentence on foot.
[19](1982) 149 CLR 1.
[20](1982) 149 CLR 1 at 3.
The problem which arose in Ryan does not exist in the present case. It was that, although the appellant had been convicted on multiple counts in a presentment, the subject matter of his appeal related to one only of those counts, and the propriety of the convictions on the other counts did not arise for consideration, either directly or indirectly, by what was then the Court of Criminal Appeal. It was held that, in those circumstances, the condition of the operation of s 569(1), expressed in its opening words, was not made out. One member of the Court, Brennan J, decided the case on a somewhat different basis, which is also immaterial in the present case. His Honour held that, in the circumstances of that case, the counts had not been properly joined.
In his written submissions, counsel for the appellant examined the historical background of the United Kingdom legislation on which s 569(1) was modelled. This subject, together with the course of English authority upon the legislation, was considered in the judgments in Ryan. It is unnecessary to repeat what was there said. One of the reasons why counsel went to this history was to support a submission that, when properly understood, s 569(1) has no application to a case such as the present, where separate sentences have been imposed in respect of each of a number of counts in an indictment. According to this argument, the provision was intended to apply only where a general sentence is imposed in respect of all counts collectively or, perhaps, where a sentence is imposed in respect of the most serious of a number of offences and no sentence is imposed in respect of others. This submission cannot be accepted. A similar argument was expressly considered and rejected in Ryan by Stephen J[21] and Brennan J[22]. As Brennan J observed, although general or global sentences in the case of multiple offences have, in the past, been common in England, they are virtually unknown in Victoria, and may not be permissible. It is unnecessary to resolve the latter question. It suffices to say that current sentencing practice in Victoria requires the imposition of individual sentences in relation to each count upon which an appellant is convicted unless, of course, it is decided that for some sufficient reason no sentence should be imposed in relation to a particular offence.
[21](1982) 149 CLR 1 at 9.
[22](1982) 149 CLR 1 at 25.
The purpose of s 569(1) was explained by Brennan J in Ryan[23] as follows:
"When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted. If the offences are founded on the same facts, it is necessary to ensure that the appropriate penalty for the same act or omission is not imposed twice; if the offences are part of a series, the entirety of the criminal conduct of the same or similar character, rather than the several acts or omissions constituting the separate offences, may determine the appropriate overall sentence to be imposed. In pronouncing sentence, however, the trial judge imposes separate sentences in respect of the several offences of which the accused has been convicted, effecting the appropriate overall sentence by adjusting the severity of the separate sentences and, when custodial sentences are imposed, by ordering that they be served either concurrently or cumulatively.
On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569(1) of the Crimes Act allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands."
[23](1982) 149 CLR 1 at 22-23.
It was further submitted on behalf of the appellant that, either because, on its true construction, the provision does not authorise such a course, or, alternatively, as a matter of proper exercise of discretion, the Court of Appeal cannot, or should not, use s 569(1) for the purpose of correcting what it regards as inadequacy in the sentences imposed by a sentencing judge. This, it is said, is a process which may be undertaken, in the event of a prosecution appeal against inadequacy, under s 567A, or in the event of an appeal against severity by an offender, under s 568(1), but it is not a proper exercise to be undertaken under s 569(1). This submission must also be rejected, for reasons given by Brennan J in relation to a similar submission in Ryan. His Honour said[24]:
"It was submitted further that it would be unjust for the Full Court of its own motion to increase a sentence in respect of a conviction against which neither the appellant nor the Crown has appealed. The sentence affirmed or substituted by the Full Court must plainly be a sentence which, after an appeal against conviction on one or more counts is allowed, is supported by the conviction or convictions which stand; it cannot be the sentence in respect of the conviction or convictions which are quashed. Given a regular joinder of the counts, there is no injustice in increasing the sentence in respect of a conviction which stands if the increase is occasioned by the setting aside of the sentence which carried the appropriate penalty for conduct which constitutes either an element of the offence or a part of the series of offences for which the appellant stands convicted. Full justice is done to an appellant when the Full Court quashes a conviction on some count or part of the indictment on which he ought not to have been convicted; it goes beyond the requirements of justice to relieve him of the appropriate penalty for conduct for which he still stands convicted. The power to affirm the sentence or to substitute another sentence under s 569(1) is not needed when there are appeals against that sentence under s 567A or s 568. Section 569(1) must have an operation additional to that for which those sections provide."
[24](1982) 149 CLR 1 at 25.
It was argued, that, as a matter of the proper exercise of discretion, the occasion to exercise the power given by s 569(1) would ordinarily arise only when there is some connection between the convictions which are left standing and the alleged offences in respect of which convictions have been quashed such as to warrant a conclusion that the quashing of some convictions requires an alteration of the sentence imposed in respect of others. That is so. Of course, in the absence of some connection, it would not have been proper to join a number of counts in the one indictment or presentment in the first place. As the analysis of Brennan J in Ryan demonstrates, and as the facts of the present case illustrate, sufficient connection to justify an exercise of the power under s 569(1) may be found in the principle of totality. Much may depend upon the manner in which the sentencing judge has applied that principle. If the judge has followed the course recommended in the cases of Mill and Lomax, and responded to considerations of totality, not by reducing individual sentences, but by fixing individually appropriate sentences and making them wholly or partly concurrent, then no occasion to invoke s 569(1) may arise. On the other hand, if, as in the present case, a sentencing judge has given effect to considerations of totality partly by imposing individual sentences which were less than they would otherwise have been, then that is the very kind of case which may call for an exercise of the power to re-sentence under s 569(1).
Finally, it was argued that, as a matter of discretion, it was inappropriate for the Court of Appeal to re-sentence as it did, bearing in mind the orders for a new trial on the four counts in respect of which the convictions were quashed, and the possibility that, in the future, the appellant will be sentenced in respect of those counts.
As a passage from the reasoning of Batt JA quoted above demonstrates, this is an important discretionary consideration, and was taken into account by the Court of Appeal. No error has been shown in the reasoning of Batt JA in relation to that matter. Section 569(1) required the Court of Appeal, once it decided to quash some of the convictions, and not to quash others, to consider the sentences on the convictions left standing, in the light of the alternatives presented by the section. The options available to the Court were either to affirm the sentences in respect of those convictions or pass sentences in substitution. Having concluded that the sentences imposed in respect of convictions left standing were manifestly inadequate, as they were, it is not easy to see why, in the particular circumstances of the present case, the Court of Appeal might have decided to adopt the course of affirming those sentences. As a matter of discretion, it was, at the least, open to the Court of Appeal to decide that it would not affirm the manifestly inadequate sentences, and would re-sentence the appellant. Upon such re-sentencing, the Court of Appeal took into account the matter of the possible new trial, and considerations of proportionality, totality and double jeopardy. Batt JA expressed his reasoning in relation to those subjects, and explained why he thought that the fresh sentences he proposed were appropriate. No error has been shown in his reasoning in that respect.
Ground (i) must fail.
Ground (ii)
This ground of appeal may be dealt with briefly.
There was no procedural unfairness to the appellant in the course that was adopted by the Court of Appeal. The Court gave adequate warning of the possibility that, if it quashed some of the convictions, it might increase the sentences in respect of others. That is what led to the abandonment of the appellant's application for leave to appeal against sentence. Thereafter, the appellant was given full opportunity, by his counsel, to put submissions on s 569(1), both as to questions of power, and as to matters of discretion.
Ground (ii) must fail.
Order
The appeal should be dismissed.
McHUGH, GUMMOW AND HAYNE JJ. The issue in this appeal is whether the Court of Appeal of Victoria, after quashing the appellant's convictions on several counts in a presentment, had power under s 569(1) of the Crimes Act 1958 (Vic) ("the Act") to increase the sentences for the remaining counts in the presentment on the ground that the total effective sentence on those counts was manifestly inadequate. The issue arises in circumstances where there has been no appeal against sentence by either the prosecution or the appellant and the Court of Appeal has ordered a re-trial of the counts in respect of which the convictions were quashed.
In our opinion, the appeal should be dismissed on the ground that, in the circumstances of the case, the Court had power to increase the sentences of the appellant on the remaining convictions and that it made no error in determining that it was appropriate to increase the sentences in the manner which it did. The appellant's claim that the combination of the new sentences and the order for a new trial is an injustice is premature. If he is convicted on his re-trial and the new sentences (there may be only one) are to commence after the expiration of the sentences imposed by the Court of Appeal, he may be able to make out a claim that the new sentences are manifestly excessive or are a miscarriage of justice. But he cannot make out such a claim now.
The Court of Appeal was entitled to increase the remaining sentences because they were imposed for offences which were part of a continuing course of criminal conduct by the appellant and those individual sentences did not reflect the appropriate punishment for the offences for which they were imposed. That was because Judge Harbison had compressed the individual sentences to ensure that their totality did not reflect more than proper punishment for the course of the criminal conduct. An example of the compressed nature of the sentences is shown by the sentence for rape for which the appellant received a sentence of only 18 months. Given the long course and the nature of the appellant's criminality, it would have been an error on the part of the Court of Appeal to have left the remaining sentences standing, sentences which individually and collectively were then manifestly inadequate to reflect the appellant's criminality.
Facts and procedural history
The appellant was found guilty by a jury of committing various sexual offences against his two step-daughters, "CJM" and "KMM". They were the daughters of the appellant's wife from her previous marriage. All the offences of which the appellant was convicted were committed in the family home. They commenced in 1988 and continued until August 1996. Against CJM, the appellant was found guilty of:
(a) five counts of incest (counts 3, 4, 10, 20 and 24);
(b) one count of gross indecency (count 8);
(c) one count of indecent assault (count 9); and(d)four counts of causing a child to take part in prostitution (counts 12, 16, 18 and 19).
Against KMM, the appellant was found guilty of:
(a) one count of gross indecency (count 2);
(b) three counts of incest (counts 5, 11 and 23); and
(c) one count of rape (count 6).Sentences imposed at first instance
Judge Harbison sentenced the appellant to the terms of imprisonment as set out in the table below. Her Honour directed that the sentences on counts 2 and 3, counts 3 and 4, counts 8 and 9, counts 10 and 11, and counts 18, 19 and 20 be served concurrently. All other sentences were to be served cumulatively. The total effective sentence imposed by her Honour was 12 years. Her Honour fixed a non-parole period of 10 years. The changes to those sentences by the Court of Appeal are also set out in the table.
Count – Offence Sentence imposed by Judge Harbison New sentence imposed by the Court of Appeal pursuant to s 569(1)
Count 2 – Gross Indecency 9 months NIL – conviction on this count quashed and
re-trial orderedCount 3 – Incest 12 months 2 years Count 4 – Incest 12 months 2 years Count 5 – Incest 12 months NIL – conviction on this count quashed and
re-trial ordered.Count 6 – Rape 18 months NIL – conviction on this count quashed and
re-trial ordered.Count 8 – Gross Indecency 18 months 2 years Count 9 – Indecent Assault 3 months 2 years Count 10 – Incest 18 months 4 years Count 11 – Incest 18 months 4 years
Count 12 – Child Prostitution 12 months 2 years Count 16 – Child Prostitution 12 months 2 years Count 18 – Child Prostitution 24 months 4 years Count 19 – Child Prostitution 24 months 4 years Count 20 – Incest 24 months 4 years Count 23 – Incest 12 months NIL – conviction on this count quashed and
re-trial orderedCount 24 – Incest 6 months 2 years TOTAL EFFECTIVE SENTENCE
12 years with non-parole period of 10 years.
12 years with non-parole period of 10 years.
Appeal to the Court of Appeal
The appellant appealed against his convictions on all counts and applied for leave to appeal against sentence on all counts. However, he sought, and was given, leave to withdraw the application for leave to appeal against the sentences. The Court of Appeal[25] (Phillips CJ, Batt and Kenny JJA) allowed his appeal in respect of the convictions on counts 2, 5, 6 and 23 because of a misdirection by Judge Harbison about the use to which the jury could put the evidence of a sexual relationship between the appellant and CJM in determining the appellant’s guilt on the counts relating to KMM. Those convictions were quashed. The Court of Appeal ordered a new trial in respect of them. Otherwise the appeal was dismissed.
[25]R v R H McL [1999] 1 VR 746.
The effect of quashing the convictions on counts 2, 5, 6 and 23 was that the total effective sentence of imprisonment was reduced from 12 years to 8½ years, but the non-parole period remained at 10 years. However, the Court of Appeal held that it had power under s 569(1) of the Act to increase the sentences on the remaining counts. That section has counterparts in other Australian jurisdictions[26]. It relevantly provides:
"If it appears to the Court of Appeal that an appellant, though not properly convicted on some count or part of the indictment ... has been properly convicted on some other count or part of the indictment ... the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment ... on which the Court considers that the appellant has been properly convicted."
By s 566 of the Act, "indictment" includes presentment.
[26]Criminal Appeal Act 1912 (NSW), s 7(1); Criminal Code (Q), s 668F(1); Criminal Law Consolidation Act 1935 (SA), s 354(1); Criminal Code (Tas), s 403(1); Criminal Code (WA), s 693(1).
The Court of Appeal thought that the total sentence of 8½ years on the remaining counts was "manifestly inadequate."[27] It ordered that, in substitution for the sentences passed by Judge Harbison, the appellant should be sentenced to the terms of imprisonment set out in the above table. The Court of Appeal ordered that sentences imposed on counts 3, 4, 12, 16 and 24 be served concurrently with each other, that the sentences imposed on counts 8 and 9 be served concurrently with each other, that the sentences imposed on counts 10 and 11 be served concurrently with each other, and that the sentences imposed on counts 18, 19 and 20 be served concurrently with each other. The Court of Appeal ordered that otherwise all sentences should be served cumulatively. The result was that the appellant was given a total effective sentence of 12 years. The Court of Appeal ordered a non-parole period of 10 years.
[27]R v R H McL [1999] 1 VR 746 at 779.
The quashing of convictions resulted in no decrease in sentence
Notwithstanding that four convictions had been quashed, the total effective sentence imposed by the Court of Appeal was the same as that imposed by Judge Harbison. The appellant contends in this Court that he is now worse off than if he had not successfully appealed against four of his convictions. Not only does he have to serve the same length of sentence with the same non-parole period as Judge Harbison had imposed, but he is now at risk of getting an increased sentence if he is convicted at the new trial of the counts of rape, gross indecency and incest.
However, the power conferred by s 569(1) of the Act is a power to re‑sentence the accused de novo. It is not a power merely to review the adequacy of the appellant's sentence following the quashing of convictions. Section s 569(1) declares that, where the section operates, the Court of Appeal may "pass such sentence in substitution therefor as it thinks proper and as may be warranted in law". If the Court of Appeal was entitled to invoke s 569(1), it was entitled to re-sentence the appellant.
The ordinary meaning of the words of s 569(1) appear to give the Court of Appeal the power to re-sentence the appellant. It had held that the appellant was "not properly convicted on some count ... of the indictment". That being so, the Court of Appeal was entitled to examine the remaining sentences and "either affirm the sentence[s] passed on the appellant at the trial or pass such sentence[s] in substitution therefor as it thinks proper". Given that the appellant does not complain that, if the Court of Appeal had power under s 569(1), it was wrong in concluding that the total remaining sentence of 8½ years was manifestly inadequate, or that it otherwise made an error, the equality of the sentences imposed by Judge Harbison and the Court of Appeal is not itself significant. It would seem, therefore, that the course taken by the Court of Appeal was authorised by s 569(1). However, the matter is not at large.
In Ryan v The Queen[28], this Court specifically considered the effect of s 569(1) of the Act, and the appellant asserts that the construction which this Court placed on the sub-section means that the Court of Appeal either had no power to do what it did or that it wrongly exercised its discretion. Accordingly, we turn to consider that case in detail.
[28](1982) 149 CLR 1.
Ryan v The Queen
In Ryan, the accused was presented for trial on a presentment containing two counts of trafficking in heroin and four counts of handling stolen goods. He was convicted on one count of trafficking and on the four counts of handling. He was sentenced to four years' imprisonment on the trafficking count and six months' imprisonment on each of the handling counts. The sentences on two of the handling counts were made cumulative on each other and on the trafficking sentence. An appeal to the Full Court of the Supreme Court of Victoria (the Court of Criminal Appeal) against the conviction for trafficking only was allowed. In reliance on s 569(1) of the Act, the Full Court (now the Court of Appeal) substituted terms of eighteen months imprisonment for each of the four handling counts. Two of the terms were to be cumulative and the other two were to be concurrent with the cumulative terms.
This Court held that s 569(1) did not authorise the Full Court to increase the sentences separately imposed on those counts which were not the subject of appeal to it. However, there were differences in the reasons for judgment of the members of the Court for so holding.
Stephen J
Stephen J said that s 569(1) did not apply "where the circumstances were such that the appellate court could not determine the correctness of the conviction on the 'other counts'"[29]. His Honour held that the handling counts had not been properly joined with the trafficking counts because there was little connection between the two. His Honour was of the view that "when there has been a misjoinder of counts and no appeal on the misjoined counts an appellate court will usually have no occasion to satisfy itself of the correctness of the convictions on those counts."[30] However, his Honour said that s 569(1) was applicable in circumstances such as those in R v Lovelock[31].
[29]Ryan v The Queen (1982) 149 CLR 1 at 9 (emphasis added).
[30]Ryan v The Queen (1982) 149 CLR 1 at 7.
[31][1956] 1 WLR 1217; [1956] 3 All ER 223.
Lovelock was decided under the English equivalent to s 569(1). The accused in that case had been charged with attempted rape and indecent assault. As Stephen J described it, "[t]he conviction of the first count was quashed for want of evidence of any attempt to rape but the evidence amply supported the conviction on the second count."[32] His Honour said that Lovelock was a case in which there had been a proper joinder of counts, so that "the Court of Criminal Appeal, despite the absence of any appeal against conviction on the second count of indecent assault, could be left in no doubt but that that conviction was proper; it was readily able to and did conclude that Lovelock 'was properly convicted on the second count'."[33]
[32]Ryan v The Queen (1982) 149 CLR 1 at 6-7.
[33]Ryan v The Queen (1982) 149 CLR 1 at 7.
Aickin J
Aickin J was also of the opinion that the power conferred by s 569(1) could not be used in respect of convictions that were not before it. His Honour said[34]:
"The opening phrase, 'if it appears to the Full Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment', cannot in my opinion apply where the Court of Criminal Appeal does not have before it for consideration the convictions on the other count or counts to which the sub-section refers. I am unable to see how it can appear to that Court that an appellant was properly convicted when the propriety of the conviction is not before it. The absence of an appeal by the accused is not a sufficient basis for an assumption that he was 'properly convicted'. The words are however apt to apply to a case where the appeal is against conviction on two or more counts and will be applicable only where the appeal is successful on some but not all counts". (emphasis added)
[34]Ryan v The Queen (1982) 149 CLR 1 at 15.
However, his Honour also said, in a comment with relevance to this case[35]:
"If the accused were convicted on the new trial for trafficking in heroin and were still serving the sentences imposed by the Court of Criminal Appeal for handling stolen goods, s 478(1) of the Crimes Act would authorize the trial judge to impose a sentence to commence on the expiration of those sentences. In the light of those considerations it can seldom be appropriate to use s 569(1) of the Crimes Act in a case where a new trial has been ordered under s 568(2)."
[35]Ryan v The Queen (1982) 149 CLR 1 at 14-15.
Wilson J
Wilson J (with whose judgment Gibbs CJ agreed) said[36]:
"It is only where the impact of a sentence is not confined to the conviction that is quashed that there is any occasion which calls for a power to affirm or make a substitution for that sentence. In a case, as in this case, where a separate sentence is imposed in respect of each count in an indictment on which there is a conviction, I do not think it is open to say that the sentence which is imposed directly on the conviction which is later quashed on appeal contains any element of survival because of some relationship to the remaining counts. In truth, there is no such relationship. Yet it is only that sentence which s 569(1) says can be affirmed or for which another sentence can be substituted. The sub‑section does not authorize any interference with the sentences which have been separately imposed on counts not the subject of appeal."
[36]Ryan v The Queen (1982) 149 CLR 1 at 21.
Brennan J
Brennan J decided the case on the basis that the misjoinder of counts made it inappropriate for the exercise of the power under s 569(1). His Honour said[37]:
"It is extremely unlikely that it would be right to exercise the power conferred by s 569(1) to adjust in the Full Court the sentence imposed at first instance on counts which ought to have been tried separately from the count upon which the appellant is found to have been not properly convicted. In my view, the present case was not a proper case for the exercise of the power. It was not a case where the sentence imposed on the conviction which was quashed was passed in respect of conduct connected with the conduct supporting the convictions which stand. It was not appropriate in the present case to exercise the powers conferred by s 569(1), for the Court increased the sentences upon convictions which were unconnected with the case before it and which could not have fallen for consideration had the presentment been regularly framed."
[37]Ryan v The Queen (1982) 149 CLR 1 at 24-25.
Although this passage contains the ratio of Brennan J’s reasoning, he also made the following obiter comments[38]:
"It was submitted further that it would be unjust for the Full Court of its own motion to increase a sentence in respect of a conviction against which neither the appellant nor the Crown has appealed. The sentence affirmed or substituted by the Full Court must plainly be a sentence which, after an appeal against conviction on one or more counts is allowed, is supported by the conviction or convictions which stand; it cannot be the sentence in respect of the conviction or convictions which are quashed. Given a regular joinder of the counts, there is no injustice in increasing the sentence in respect of a conviction which stands if the increase is occasioned by the setting aside of the sentence which carried the appropriate penalty for conduct which constitutes either an element of the offence or a part of the series of offences for which the appellant stands convicted. Full justice is done to an appellant when the Full Court quashes a conviction on some count or part of the indictment on which he ought not to have been convicted; it goes beyond the requirements of justice to relieve him of the appropriate penalty for conduct for which he still stands convicted. The power to affirm the sentence or to substitute another sentence under s 569(1) is not needed when there are appeals against that sentence under s 567A or s 568. Section 569(1) must have an operation additional to that for which those sections provide."
[38]Ryan v The Queen (1982) 149 CLR 1 at 25.
In our opinion, although there was no unanimity of reasoning of a majority of Justices in Ryan sufficient to constitute a ratio decidendi, the comments of a majority of the Justices support the proposition that the Court of Appeal has power under s 569(1) to increase sentences for convictions which were not quashed by the Court of Appeal but were the subject of an appeal to it. Three of the five Justices (Stephen, Aickin and Brennan JJ) were of the view that, where there was a proper joinder of the counts in the indictment, and appeals against one or more convictions have succeeded and appeals against one or more convictions have failed, so that the Court of Appeal could satisfy itself that the appellant had been "properly convicted" on the latter counts, s 569(1) conferred power on the Court of Appeal to increase sentences on those counts. This was so even though there had been no appeal against the sentences on the counts where the appeals against conviction failed. In our opinion, this view of s 569(1) is correct. In the present case, therefore, the Court of Appeal had power to increase the sentences on the remaining convictions.
It is true that Wilson J said[39]:
"[W]here a separate sentence is imposed in respect of each count in an indictment on which there is a conviction, I do not think it is open to say that the sentence which is imposed directly on the conviction which is later quashed on appeal contains any element of survival because of some relationship to the remaining counts."
But if his Honour intended to say that s 569(1) can never have operation where separate sentences are imposed on separate counts, and can only operate where one general sentence in respect of all counts is imposed, then in our respectful opinion he fell into error. In Ryan, three of the Justices pointed out that general sentences were almost never imposed in Victoria[40]. To confine s 569(1) to cases where such sentences had been imposed would leave no room in practice for the section to operate[41].
[39]Ryan v The Queen (1982) 149 CLR 1 at 21.
[40](1982) 149 CLR 1 at 4 per Stephen J, 13 per Aickin J, 25 per Brennan J.
[41]Ryan v The Queen (1982) 149 CLR 1 at 25 per Brennan J.
The relevance of a re-trial
In Ryan, Aickin J expressed misgivings about increasing the sentence in respect of the remaining counts when a new trial had been ordered[42]. So a question arises whether the discretion to exercise the power conferred by s 569(1) was properly exercised by the Court of Appeal having regard to the order for a new trial on four of the counts in the indictment.
[42](1982) 149 CLR 1 at 14-15.
By reason of his convictions in the present case, the appellant was a "serious sexual offender" within the meaning of s 16(3A) of the Sentencing Act 1991 (Vic) ("the Sentencing Act"). Section 16(3A) stated:
"Every term of imprisonment imposed on a serious sexual offender by a court for a sexual offence or a violent offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term."[43]
[43]The conclusion that this provision was the relevant provision depends first on the Sentencing (Amendment) Act 1993 (Vic), which introduced into the Sentencing Act the serious sexual offender provisions (including s 16(3A)), and secondly on the temporal limitation upon the operation of the provisions of the Sentencing and Other Acts (Amendment) Act 1997 (Vic), including the repeal (by s 7) of s 16(3A) of the Sentencing Act. The proceedings against the appellant commenced before the 1997 statute came into force.
If the appellant were found guilty after the re-trial of any of the counts on which the Court of Appeal quashed his convictions, there may be said to be some question about what sentencing provisions apply[44]. No argument was directed to that issue and we express no view upon it. It is enough to note that both s 16(3A) and the provision which replaced it (s 6E) would require the sentencing judge to order that the sentences imposed on any such count be served cumulatively upon his current sentences unless some circumstance of the case called for the exercise of the discretion against doing so. That discretion is given by the phrase "unless otherwise directed by the court". Notwithstanding the possibility of the discretion being exercised in the appellant's favour, there is no doubt that he is at risk of having to serve longer sentences than he had to serve before his successful appeal. But it does not follow that the sentences imposed by the Court of Appeal constituted an injustice or incongruity or a wrongful exercise of discretion.
[44]Sentencing and Other Acts (Amendment) Act 1997, s 33.
Given the criminality of the appellant, the sentences on the counts remaining were manifestly inadequate. The public interest required them to be increased. Contrary to the apparent view expressed by Aickin J in Ryan, we do not think that the Court of Appeal should refrain from using its power under s 569(1) of the Act merely because it has ordered a new trial on the remaining counts. To suggest that it should seems inconsistent with the presumption of innocence of the accused on the counts in respect of which he is to be re-tried.
Moreover, sentencing is not a matter of interest only to the prosecution and the appellant. The principal object of the criminal law is to protect the safety and property of the people and the State. Members of the public, as well as the prosecution, have a vital interest in ensuring that those found guilty of crimes receive the sentences which are appropriate to their criminality. If the Court of Appeal had not increased the remaining sentences and, for good reason, the prosecution should then have decided not to prosecute the charges in respect of which the verdicts of guilty had been set aside, the appellant would serve sentences for shorter periods than his criminality required. Such a result would be contrary to the policy of s 569(1) which is plainly intended to ensure that the remaining sentences reflect the criminality of an appellant who has had one or more, but not all, of his or her convictions quashed.
Section 569(1) of the Act gives the Court of Appeal the power, on its own motion, to increase sentences in cases where some convictions are quashed but other convictions on the same indictment stand. There is a clear legislative recognition that the public interest may require the remaining sentences to be increased whether or not the prosecution or, if it matters, the appellant, has appealed against those sentences. Given the apparent object of the section, the Court of Appeal must be free to impose on the appellant what it considers is the correct sentence, taking into account only those offences of which the appellant stands convicted at the time of sentencing. This is so irrespective of whether the Court of Appeal enters an acquittal or orders a new trial in respect of those charges where the convictions have been quashed. Nothing in s 569(1) indicates that the Court of Appeal must hold its hand because the appellant must face a new trial on one or more of the charges. In sentencing the appellant on the convictions that stand, the Court of Appeal is entitled to act on the basis that he is presumed innocent of the outstanding charges and to sentence him for what he has done in respect of the charges on which he stands convicted.
The re-trial
If the appellant is convicted on any count on the re-trial, it will be for the sentencing judge to determine whether the appellant should be given a sentence on that count that requires a total sentence longer than that which the Court of Appeal has given him. In determining that issue, the sentencing judge will have to consider whether the conduct involved in that conviction is part of the same course of criminal conduct which gave rise to the previous convictions. If it is, the sentencing judge will have to determine whether the totality principle requires that the appellant should not receive a sentence that is effectively longer than that already imposed by the Court of Appeal. The sentencing judge will also need to consider s 16(3A) (or s 6E, the provision which replaced it) of the Sentencing Act in determining the scope for the application of the totality principle, a point to which we will return later.
If the appellant is convicted on any count at the re-trial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial[45]. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.
[45]Gilmore (1979) 1 A Crim R 416; Williams v The Queen (No 2) [1982] WAR 281; R v Bedford (1986) 5 NSWLR 711; R v Chen [1993] 2 VR 139; Campbell v The Queen (unreported, Federal Court, 11 September 1996); R v Petersen [1999] 2 Qd R 85.
Following Gilmore, a similar issue arose in the Court of Criminal Appeal of Western Australia in Williams v The Queen (No 2)[139]. In that case, Burt CJ[140] accepted as an applicable principle an earlier observation of Jackson CJ in that Court[141] that "unless there is some strong ground there should not be a disparity passed between the sentences imposed upon persons convicted on the second occasion after a retrial compared with those that were imposed upon them on the first occasion". Burt CJ cited with approval the approach of Street CJ in Gilmore[142]. The other participating judges also endorsed the principles in Gilmore[143]. Nevertheless, the case before the Court was regarded as so extraordinary that it demanded the conclusion that the original sentence was inadequate and would have been set aside had it been the subject of an appeal. Accordingly, in that case, the new and higher sentence, as imposed at the second trial, was affirmed. The appeal against it was dismissed.
[139] [1982] WAR 281.
[140][1982] WAR 281 at 283.
[141] In Leary and Compt v The Queen unreported, Court of Criminal Appeal of Western Australia, 18 August 1975 at 3.
[142] [1982] WAR 281 at 283-284.
[143] [1982] WAR 281 at 284 per Wickham J, 288 per Kennedy J.
In Bedford[144], a few years later, Street CJ in the New South Wales Court of Criminal Appeal returned to what he had said in Gilmore. He made it plain that the decision left a measure of flexibility to the judicial officer engaged in sentencing an offender for the second time following the earlier quashing of the first conviction and sentence[145]:
"Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view."
[144] (1986) 28 A Crim R 311.
[145] (1986) 28 A Crim R 311 at 316-317 per Street CJ (Slattery CJ at CL and Brownie J agreeing).
In R v Chen[146], the Victorian Court of Criminal Appeal reverted to the problem. That Court saw Bedford as amounting to a drawing "back somewhat"[147] from the view expressed in Gilmore. However, their Honours expressly agreed with the way in which the Western Australian court had used the Gilmore reasoning in Williams[148]. They also agreed with the view stated in Bedford that, if a longer sentence were called for, the reasons given should specifically explain why a sentence longer than that passed at the first trial was required.
[146] [1993] 2 VR 139.
[147][1993] 2 VR 139 at 159.
[148] [1993] 2 VR 139 at 160.
The rule of restraint which the foregoing cases demonstrate appears still to be the approach adopted by the Victorian courts[149]. It is not a rigid rule. But its foundation lies in the elementary attributes of a manifestly just system of criminal appeals that Street CJ explained in Gilmore. In a further case, R v Petersen[150], the Court of Appeal of Queensland, after analysis of the foregoing authorities, expressed the approach which emerges from twenty-five years of consideration of this issue in criminal appeals in Australia, in terms which I would adopt:
"[w]here an offender is to be re-sentenced following a successful appeal and re-trial, the second sentencing Judge should start with the proposition that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. If minded to depart from that approach, he or she should consider the powerful policy considerations outlined above. Only if the second sentencing judge concludes that the earlier sentence was outside the appropriate range, or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based, should he or she impose a heavier sentence."
[149] See eg R v Bolton and Baker [1998] 1 VR 692.
[150] [1999] 2 Qd R 85 at 87.
What is the fundamental reason for this approach? It is to be found in the law's response to a form of double jeopardy. In Pearce v The Queen[151], I explained the notion in these terms:
"[T]he principle that a person should not twice be placed in jeopardy for the same matter is a cardinal rule lying '[a]t the foundation of criminal law'. The rule has been explained as arising from a basic repugnance against the exercise of the state's power to put an accused person in repeated peril of criminal punishment.
Legal relief against double jeopardy was known to the laws of ancient Greece and Rome. It was also known to ecclesiastical law. …
In the law of England, the origins of the rule are sometimes traced to the conflict in the late Twelfth Century between the civil and ecclesiastical powers represented, respectively, by King Henry II and Archbishop Thomas à Becket."
Even God, according to scripture, observed a restriction on the second exercise of His powers[152].
[151] (1998) 194 CLR 610 at 630-631 [73]-[75] (footnotes omitted).
[152] See Pearce v The Queen (1998) 194 CLR 610 at 631 [74] citing I Nahum 9, 12 (King James Version); cf Bartkus v Illinois 359 US 121 at 152 (1959) per Black J.
Strictly speaking, the resentencing of an offender on a second occasion, whether at a retrial or in an appellate court, is not double jeopardy in its pure form, for the first jeopardy has been held to have miscarried in whole or part. But as a matter of practicality, it involves the subjection of the accused to a second legal proceeding, with a fresh endorsement of the conviction (itself a punishment) and a second imposition of punishment as a result. It is therefore appropriate, for the reasons which have been collected in the Australian cases, to approach the task of sentencing a person convicted for a second time (or resentencing a person because of disparities revealed by an appellate outcome) in the way explained in Petersen.
I realise that the cases in which the "ceiling" principle has hitherto been stated have involved appellate review of a second sentence following an earlier appeal which quashed the first conviction and sentence and ordered a retrial at which the offender was again convicted and sentenced. But in my view the principle is exactly the same where resentencing occurs in the appellate court because that court has upheld, in part, an appeal against conviction and disparities or anomalies in the resulting sentence must be corrected by that court. It is the same because what is involved is resentencing. That resentencing cannot erase completely the fact of the first sentence. It cannot eliminate entirely the species of double jeopardy that is involved. These considerations impose, at least as a starting point, a presumption of restraint and an obligation to explain any departure from such restraint. The same policy reasons lie behind these considerations as were identified in Gilmore. The appellant, entitled to succeed in an appeal against conviction, should not be restrained from appealing by a fear that the outcome will be, effectively, a heavier sentence. The appellant and the community should not be left with the impression, however unjustified, that the "machinery of criminal justice" has extracted retribution against an appellant who, by hypothesis, was justified in appealing.
There is an air of unreality in suggesting that the present appellant must await the outcome of what happens. He has been resentenced. He is entitled to complain if correct principles were not applied. Appellate courts do not surrender their supervision of such sentencing orders to the decisions of the Executive or the chance outcome of later events, including the timing of any later prosecution. The approach which I favour is not, in my view, inconsistent with the presumption of innocence[153]. It is true that the appellant has the benefit of this in the retrial. But he has the burden of an order for a new trial on several counts and that on top of what is effectively the same custodial sentence as he was serving when he "succeeded" in his appeal.
[153]Reasons of McHugh, Gummow and Hayne JJ at [68].
Conclusion: the exercise of the power of substitution miscarried
It is true that, when the Court of Appeal in the present case proceeded to exercise its powers under s 569(1) of the Crimes Act, it referred to considerations of totality and to proportionality and the controlling force which double jeopardy provides[154]. However, it did not refer to the starting point which the essential principle in Gilmore, and the cases since, mandate. Nor is there any reference in the reasoning of the Court of Appeal to the specific consideration which imposes a constraint on the exercise of the power to substitute a new sentence under s 569(1) of the Crimes Act and its equivalents. That consideration arises where the court has ordered the prisoner to be retried on some of the counts upon which formerly he or she was convicted. The constraint derives directly from the fact that the appellate court does not, and cannot, know: (1) whether the prosecution authorities will direct such a retrial; (2) if they do, when they will do so and when such trial will be had; (3) whether, if they do, the appellant will be convicted; and (4) what, if any, additional sentence the judge of the second trial will impose.
[154] R v R H McL [1999] 1 VR 746 at 779.
In the present case, these were all live issues. By reason of the designation of the appellant as a "serious sexual offender", and by virtue of the statutory provisions that would govern a sentencing judge on a second trial, and the discretionary powers that such a judge would enjoy were such a trial held and the appellant convicted, the consideration of additional punishment could neither be put out of mind nor, in my view, ignored. Proper sentencing practice required that any effective increase in the appellant's sentence, in the exercise of the powers under s 569(1) of the Crimes Act, should be accompanied by specific reasons explaining why that exceptional course was justified. In the present case, no such specific reasons were given.
In so far as the Court of Appeal refers in its reasons to the constraint which the general principle of totality imposed on Judge Harbison, that consideration remains. If the sentence which her Honour imposed was seen by her (as she said) to be the maximum proper with respect to all of the appellant's original convictions and what was required to avoid a "crushing" sentence on the appellant, it is hard to see how the same considerations would not oblige at least some reduction of the total sentence when four of those convictions were quashed. Especially is this so because the appellant was also ordered to face a retrial in which, on conviction, his effective custodial sentence would probably have to be increased.
Because these considerations were not addressed in the reasons of the Court of Appeal and because they are important to the proper exercise of the power to impose a substituted sentence afforded by s 569(1) of the Crimes Act, it is my view that the resentencing of the appellant under that provision miscarried. The appeal must therefore, to that extent, succeed on the third argument.
It is not appropriate for this Court to re-exercise the powers of the Court of Appeal although that course has sometimes, exceptionally, been adopted[155]. The proper course is that of remitting the proceedings to the Court of Appeal so that it might approach the discharge of its power and authority under s 569(1) of the Crimes Act in a way that not only conforms to the practice of Australian appellate courts in like matters but does so manifestly, demonstrating by its reasons that it has had the proper approach clearly in mind.
[155] eg Neal v The Queen (1982) 149 CLR 305 at 309-310 per Gibbs CJ.
Orders
The appeal should be allowed. Orders 5 and 6 of the orders of the Court of Appeal of Victoria should be set aside. The proceedings should be returned to the Court of Appeal so that that Court might re-exercise its powers under s 569(1) of the Crimes Act in accordance with the reasons of this Court.