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[2016] HCA 25
respondent. Appeal dismissed. The Court left undecided whether s 12(2) of the Criminal Appeal Act 1912 (NSW) permits remittal of a sentence determination to the court of trial.
The High Court held that a sentence appeal is not normally a fresh sentencing hearing where an offender can present a substantially different explanation for the offending. An appellate court generally works from the evidence and factual position used at the original sentence hearing, while also being able to consider relevant evidence of rehabilitation since then. Betts’s later psychiatric evidence advanced a materially different account from the case presented to the sentencing judge. Refusing to consider that new account did not make the process unjust, so the appeal was dismissed. The Court did not resolve whether the appellate court could remit the sentencing issue to the District Court.
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2,385 words · generated 04/10/2026
Betts v The Queen concerned the material an appellate court may consider when it has found error in a sentence and must decide whether another sentence is warranted in law. The High Court’s joint judgment was delivered by French CJ, Kiefel, Bell, Gageler and Gordon JJ. The appeal was dismissed.
No linked legislation citations have been extracted yet.
Betts had pleaded guilty in the District Court of New South Wales to wounding the complainant with intent to murder and detaining her without consent with intent to obtain a psychological advantage, while immediately before the detention causing actual bodily harm ([3]). The offences arose after the end of the couple’s relationship. On 17 April 2010, the complainant returned to their former apartment to collect her belongings. Betts was there, although they had agreed he would not be present. After a conversation, he blocked her from leaving and stabbed her repeatedly. The assault continued for about 40 to 45 minutes. The complainant ultimately escaped and was treated for 28 stab wounds, two collapsed lungs and a spinal fracture ([22]-[28]).
At sentence, the agreed facts described a sustained and determined attack. Betts gave evidence, expressed remorse and accepted responsibility. The sentencing judge heard character evidence and evidence about abuse Betts had experienced in his youth. But counsel accepted that the evidence was “effectively silent” on why he acted as he did. Counsel invited the judge to consider the history of abuse as a possible explanation, but did not submit that DMT intoxication had significantly contributed to the offending ([31]-[39]).
Betts received a non-parole period of 11 years and a total sentence of 16 years for wounding with intent to murder, together with a concurrent fixed term of eight years for the detention offence ([3]). He appealed against severity. The Court of Criminal Appeal upheld two grounds: it found error in treating the complainant as vulnerable under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and in limiting consideration of Betts’s injuries to the non-parole period ([45]). It nevertheless concluded that no lesser sentence was warranted ([47]).
The material before the Court of Criminal Appeal included reports by Dr Nielssen and Mr Roberts. Dr Nielssen’s opinion was that DMT, an underlying emotional state shaped by violence and sexual abuse, and substance use were significant contributing factors to Betts’s sudden decision to end his life and to his offending ([49]-[50]). The Court of Criminal Appeal declined to rely on the reports insofar as they canvassed factors contributing to the offences ([46]).
In the High Court, Betts argued that once sentencing error had been established, the Court of Criminal Appeal should have considered new evidence relevant to the appropriate sentence. He also sought remittal to the District Court. The High Court rejected the appeal, concluding that the new evidence would have allowed Betts to run a different case from the one advanced at sentence. The Court did not decide the remittal question because it had not been raised in the Court of Criminal Appeal ([7], [59]-[60]).
The Court began with the statutory structure. Section 5(1)(c) of the Criminal Appeal Act 1912 (NSW) provides for an appeal against sentence by leave. Under s 6(3), if the Court of Criminal Appeal considers that another sentence is warranted in law and should have been passed, it must quash the sentence and substitute another; otherwise it must dismiss the appeal ([9]). Although the provision is expressed broadly, appellate intervention requires error of the kind explained in House v The King ([10]).
The central proposition is that sentence re-assessment on appeal is not ordinarily a de novo hearing. The usual assessment is made on the sentencing material, together with relevant evidence of rehabilitation after sentence. The judgment states that an offender is “not permitted to run a new and different case” ([2]). This is not an absolute prohibition on new evidence. The Court recognised that new evidence may be admitted where needed to avoid a miscarriage of justice, and noted that fresh evidence may disclose error at first instance ([10]). Evidence of post-sentence rehabilitation is also routinely received for the limited purpose of being considered if the appellate court re-sentences ([11]).
The Court rejected Betts’s argument that the restraint on new evidence should fall away once error is identified. It reasoned that sentencing proceedings involve forensic choices: what mitigating material to rely on, and whether to contest any facts. A finding that the sentencing judge made an error does not, without more, erase those choices. The Court put the point directly: “Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence” ([14]).
The High Court then applied that principle to the record. Betts’s case at sentence had not been that DMT significantly contributed to his offending. Counsel accepted the finding that the crimes were committed in a jealous rage and said it had never been the appellant’s case that the crimes were driven by deep psychological motivations arising from his adolescent experiences ([53]-[55]). The later reliance on Dr Nielssen’s opinion therefore changed the account of the causes of the offending.
The Court also identified apparent conflicts between that opinion’s factual foundation and the agreed facts. Dr Nielssen recorded Betts’s account that the attack lasted around 45 seconds and that there was a blurred line between messages sent by Betts and the complainant. The agreed facts described an assault lasting 40 to 45 minutes and a schedule stating that each message during the assault was composed and sent by Betts ([58]). These differences reinforced the Court’s concern that the new evidence was not simply additional material supporting the case already advanced.
The judgment therefore distinguishes between evidence relevant to current rehabilitation and evidence that changes the historical case about the offence. The former may routinely be received for a limited purpose; the latter will not ordinarily be admitted where it contradicts the sentencing position and unchallenged findings. In Betts’s circumstances, refusing the evidence did not occasion a miscarriage of justice ([59]).
The judgment presents its approach as an application and clarification of established principles, rather than as a wholesale change in sentencing appeal law. Before Betts, the Court of Criminal Appeal’s power to intervene under common form provisions was already understood to depend on error, ordinarily assessed by reference to the material before the sentencing judge ([10]). Existing authorities also recognised that fresh evidence could, in appropriate circumstances, disclose error and that an appellate court could receive new evidence to avoid a miscarriage of justice ([10]).
The judgment clarifies how those principles operate once the appellate court has found error and turns to re-sentence. Betts rejects the idea that the sentencing discretion is then exercised on an unrestricted evidentiary record. The ordinary reference point remains the case presented at sentence, together with relevant post-sentence rehabilitation evidence. The offender’s original forensic choices generally continue to matter ([2], [12]-[14]).
The judgment does not remove the appellate court’s flexibility to receive new evidence. Its statement is qualified: that flexibility exists where receiving the evidence is necessary to avoid a miscarriage of justice ([10]). Nor does it prevent routine evidence of rehabilitation since sentence from being considered if the appellate court re-sentences ([11]). The key distinction is between additional evidence that fits within the established appellate process and evidence used to advance a substantially new explanation of the offending.
The statutory question about remittal remains separate and unresolved. Section 12(2) of the CAA authorises the Court of Criminal Appeal to remit a matter or issue to a court of trial, but the judgment does not decide whether that provision allows the appellate court to remit the determination of an offender’s sentence in the circumstances discussed ([17]-[19]). The Court observed that s 6(3) and remittal may be in tension. It left that issue for another case or possible legislative attention.
The judgment itself does not set out subsequent cases or describe how later courts have treated Betts. Any account of the law after this judgment would therefore require sources beyond the judgment supplied here.
At [2], the Court states: “As a general rule, the appellate court’s assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender’s progress towards rehabilitation in the period since the sentence hearing.”
In plain English, an appeal against sentence is usually decided using the evidence and case presented to the original sentencing judge, plus relevant information about how the offender has progressed since. It is not normally an opportunity to rebuild the case from the beginning.
At [10], the Court recognises that it is possible for new or fresh evidence to disclose error, and says the appellate court has flexibility to receive new evidence when necessary to avoid a miscarriage of justice.
In plain English, the general rule is not absolute. New evidence can matter in an appropriate case, but the judgment does not create a general permission to present new evidence whenever it might influence the sentence.
At [14], the Court explains that sentencing involves forensic decisions, including which mitigating material to rely upon and whether to dispute facts. It concludes: “Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence.”
In plain English, an offender will ordinarily be held to the position presented at the original sentence hearing. A later change of explanation does not itself make the appeal unfair.
At [59], the Court applies the principle to Betts. It says the case he wished to advance on appeal was inconsistent with the case made before Judge Toner, and that the earlier forensic choice had been to accept responsibility without asserting that DMT significantly contributed to the offences.
In plain English, the decisive concern was not simply that the psychiatric evidence was new. It was that the evidence supported a different account from the one Betts had relied on at sentence.
Betts is most directly relevant where an offender appeals sentence, the appellate court identifies an error, and the offender then seeks to rely on evidence that changes the factual or mitigating case made at the original hearing. The decision highlights the importance of comparing the proposed appellate case with the sentencing position, including the submissions made, evidence tendered, facts agreed and factual findings left unchallenged ([14], [39], [55], [59]).
The case also provides a useful distinction between two kinds of post-sentence material. Evidence of rehabilitation achieved since sentencing is routinely received on a limited basis if the court comes to re-sentence ([11]). By contrast, evidence about the causes of the original offending may be problematic if it contradicts the account advanced at sentence or undermines facts that were not challenged on appeal ([14], [59]).
The decision does not mean all new psychiatric or medical evidence must be excluded. The judgment expressly preserves the possibility of receiving evidence where necessary to avoid a miscarriage of justice ([10]). Whether that exception applies will depend on the circumstances and the relationship between the evidence, the original sentencing case and any findings made below. Betts itself does not set out a complete test for every possible category of fresh evidence.
The facts that made the proposed evidence particularly difficult in Betts included the clear sentencing position that the evidence was effectively silent about why Betts acted as he did, counsel’s acceptance of the jealous-rage finding, and the apparent divergence between parts of Dr Nielssen’s history and the agreed facts ([39], [55], [58]). Those features formed part of the Court’s explanation for finding no miscarriage of justice.
The supplied judgment does not identify decisions delivered after Betts or describe how later courts have applied, followed, distinguished or criticised it. It is therefore not possible to give a source-grounded account of subsequent treatment from this judgment alone.
Within Betts, the Court considered earlier authority on the relevant principles. It referred to House v The King for the requirement of error before appellate intervention, and cited authorities on fresh evidence, including R v Vachalec and Ratten v The Queen ([10]). It also relied on Kentwell v The Queen for the treatment of post-sentence rehabilitation evidence ([11]) and followed the reasoning in R v Deng that the principles governing new evidence on the appeal apply to the re-sentencing discretion ([12]).
The Court discussed O’Neil-Shaw v The Queen in relation to the tension between the sentence appeal provision and remittal, but did not decide that issue ([19]). Those references show the authorities the High Court considered in reaching its conclusions; they do not establish how courts treated Betts after 2016.
The most explicit unresolved question is whether s 12(2) of the CAA empowers the Court of Criminal Appeal to remit the determination of an offender’s sentence to the court of trial. The High Court declined to decide it because the question had not been raised below and was unnecessary to determine the appeal ([7], [17]-[19]). It noted a tension between the statutory language requiring the appellate court to substitute another sentence if one is warranted and the availability of a remittal power ([19]).
A related open question is how the exception for new evidence necessary to avoid a miscarriage of justice applies across different circumstances. The Court confirmed that the appellate court has flexibility to receive new evidence where necessary, but Betts does not comprehensively define the boundary of that exception ([10]). The judgment’s specific concern was a new account inconsistent with the appellant’s sentencing case, not every possible form of fresh evidence.
The judgment also does not decide the merits of the appellant’s proposed sentencing argument about the effect of self-induced intoxication. The Court accepted the submission for the purpose of the argument, without determining its correctness ([56]). Its decision rested on the appellate evidence issue and the inconsistency with the case advanced at sentence, not on a final ruling about intoxication as mitigation.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER AND GORDON JJ
JOEL BETTS APPELLANT
AND
THE QUEEN RESPONDENT
Betts v The Queen
[2016] HCA 25
15 June 2016
S281/2015
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
S J Odgers SC with P D Lange for the appellant (instructed by Murphy's Lawyers)
L A Babb SC with N L Williams for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Betts v The Queen
Criminal law – Sentencing – Where appellant appealed against severity of sentences – Where additional material produced by appellant admitted on "usual basis" that it may be taken into account if appellate court came to re-sentence – Where additional material contained evidence inconsistent with appellant's case at sentence hearing – Where appellate court found error, engaged in re‑sentencing appellant and refused to take into account additional material – Whether miscarriage of justice occasioned.
Words and phrases – "fresh evidence", "miscarriage of justice", "power of remittal", "re-sentencing discretion", "supplemental powers", "usual basis".
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3), 12.
FRENCH CJ, KIEFEL, BELL, GAGELER AND GORDON JJ. This appeal is concerned with the exercise of the appellate court's sentencing discretion under the common form criminal appeal provisions. Is the appellate court's assessment of whether some other sentence is warranted in law made on the evidence that was before the sentencing court, or does the exercise of the sentencing discretion afresh1 require a hearing de novo at which new evidence of the circumstances of the offence, and the causes of the offending, is to be received?
As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry.
Procedural history
The appellant pleaded guilty in the District Court of New South Wales to wounding the complainant with intent to murder2 and detaining the complainant without her consent with intent to obtain a psychological advantage and, immediately before the detaining, occasioning actual bodily harm to her3. On 18 May 2012, the appellant was sentenced to a non-parole period of 11 years' imprisonment with a total sentence of 16 years for the offence of wounding with intent to murder, and to a concurrent fixed term of eight years' imprisonment for the detaining offence.
The appellant appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales (Meagher JA, Hidden J and RS Hulme AJ) against the severity of the sentences on grounds which contended error in the application of sentencing principle; none of the grounds challenged Judge Toner's factual findings. A folder of material was handed up at the commencement of the hearing in the Court of Criminal Appeal on the basis that it would be admissible in the event that the Court came to re-sentence the appellant. The prosecutor did not object to the Court receiving the material "on the usual basis". The material included reports by Dr Nielssen, a psychiatrist, and Mr Roberts, a psychotherapist. The Court of Criminal Appeal upheld two of the grounds of appeal but dismissed the appeal, having determined that no lesser sentence was warranted in law4. The Court of Criminal Appeal declined to take into account the opinions in Dr Nielssen's and Mr Roberts' reports concerning the factors that had caused or contributed to the commission of the offences. The Court held that the sentence hearing had been the occasion to address these matters and the appeal did not provide "an opportunity for a second bite of those issues."5
On 11 December 2015, Kiefel, Bell and Gageler JJ granted the appellant special leave to appeal. The sole ground of appeal is that the Court of Criminal Appeal erred in failing to take into account new evidence bearing on the causes of the appellant's offending in determining whether a less severe sentence was warranted in law6. The appellant's broad case is that the Court of Criminal Appeal wrongly confined its discretion, which he sources in s 12(1) of the Criminal Appeal Act 1912 (NSW) ("the CAA"). He submits that, once error was identified and the Court of Criminal Appeal turned to consider re‑sentencing, there was little or no room to apply the restraint that governs the reception of new evidence on the hearing of the leave application or the appeal.
The determination of appeals under s 6(3)
"[T]he court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King8 is established9. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence10. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence11. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence12. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice13.
It is accepted, however, that the appellate court may receive evidence of the offender's progress towards rehabilitation in the period since the sentence hearing14. Evidence of this description is routinely received by the Court of Criminal Appeal on the limited basis that it may be taken into account in the event the Court comes to re-sentence15. It is evident that the Court of Criminal Appeal treated the material tendered on the appellant's behalf as having been admitted on this limited basis16.
The appellant's argument accepts that the restraint exercised by the Court of Criminal Appeal in receiving new evidence on the hearing of a sentence appeal is an aspect of the principled administration of adversarial criminal justice. He contends that the same consideration loses its force once error is shown and the appellate court is itself engaged in the exercise of the sentencing discretion. At this stage, so the argument goes, the issue is simply whether the new evidence is admissible and whether it has the potential to affect the determination of the appropriate sentence. A submission along the same lines was rejected in R v Deng, in which it was held that the principles governing the admission of new evidence on the appeal apply to the re-sentencing discretion.
The Court of Criminal Appeal's supplemental powers
"exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters, and issue any warrant or other process necessary for enforcing the orders or sentences of the court: Provided that in no case shall any sentence be increased by reason of, or in consideration of any evidence that was not given at the trial."
The appellant relies on the wide discretion conferred by s 12(1) on the Court of Criminal Appeal to exercise any of the powers that the Supreme Court may exercise on appeals or applications in civil matters where the Court thinks it necessary or expedient in the interests of justice. He submits that the power to receive new evidence is such a power. Accepting that is so does not advance the appellant's case. It is not in issue that the Court of Criminal Appeal has the power to receive new evidence in the determination of an appeal under s 6(3). It is unnecessary to consider whether its power to do so is confined to the supplemental powers conferred by s 12(1) or whether the power is incidental to the authority to determine an appeal against sentence under s 6(3). In either case, for the reasons already given, when the Court of Criminal Appeal exercises its sentencing discretion, the interests of justice will not usually be served by the reception of new evidence of matters that are the subject of the sentencing court's unchallenged factual findings.
The question of whether the appellate court is empowered to remit the determination of a sentence appeal under the supplemental powers conferred by s 12(1) of the CAA and its analogues is controversial20. A general power of remittal was introduced into the CAA in 198721. It is contained in s 12(2), which provides:
"The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made."
To the extent that the extrinsic material affords any assistance in identifying the object of the inclusion of the general power of remittal, it does not provide support for the conclusion that s 12(2) qualifies the conditional re-sentencing obligation imposed by s 6(3)22.
As the Court of Criminal Appeal recognised in O'Neil-Shaw v The Queen, there is a tension between the terms of s 6(3) and recourse to the power of remittal23. The utility of a power of remitter in a case such as O'Neil-Shaw, where the sentence hearing has been tainted by procedural irregularity, is evident. The question of whether it is available is not reached in this case. It might be a matter for consideration by the legislature.
The Court of Criminal Appeal's refusal to take into account the additional material
The conduct of the proceedings in the District Court
The agreed facts
The appellant and the complainant commenced an intimate relationship around December 2007. By 5 April 2010, the relationship had broken down and the complainant had moved out of their shared apartment. They had agreed that the complainant would return to the apartment to collect her belongings on the morning of Saturday, 17 April 2010. They had also agreed that the appellant would not be at the apartment.
The complainant had arranged for her brother, Todd, to meet her at the apartment to help her with the move. The appellant was inside the apartment when she arrived. The appellant said that he had been trying to contact her and that he wanted to talk. The appellant kept saying that there was no reason for them to be apart. The complainant responded that the damage to their relationship had already been done. They talked for over an hour.
About an hour and a quarter after her arrival the complainant sent a text message to Todd saying "Give me a couple of minutes. Joel is here. Sorry." Sometime after sending this message, the complainant went to leave the apartment, telling the appellant that she was going to let Todd in. The appellant blocked the front door, took hold of her and stabbed her with a knife repeatedly in the back. There followed a murderous assault on the complainant lasting 40 to 45 minutes, during which she was stabbed many more times to the back, neck and face. In the course of this sustained attack, the appellant also stabbed himself to the chest, neck, leg and wrist. At one point, the complainant attempted to escape through the front door but the appellant took hold of her and continued his assault. She told him "You're going to go to gaol. Todd's downstairs and he will know it was you." He responded, "We will die here together. Then we can be together for eternity."
The complainant believed that her only chance of survival was to weaken the appellant. She suggested that if they were going to "do this together" she should have a turn with the knife. The appellant showed her that the knife was broken. The tip was embedded in her back. He picked up another knife from the kitchen and handed it to her. The complainant stabbed him forcefully in the abdomen. Thereafter she stabbed him several more times and he continued to stab her. She again tried to escape through the front door but on this occasion the appellant was lying against it and she was too weak from her injuries to move him.
At a point, the complainant's mobile telephone rang or a text alert sounded and the appellant left her to collect the phone. She managed to get out onto the balcony. The appellant pulled her back inside the apartment and she passed out. When she came to, the appellant was standing with his foot on her neck. He suggested that they both have a drink and she agreed. He took hold of a bottle of shochu, a Japanese spirit, and they both drank from it. The complainant asked, "Why did you do it?" He replied, "You kept saying that it was over. That the damage has been done." During the assault, the appellant sent text messages using the complainant's mobile telephone to the complainant's mother and to Todd. In one message, sent to Todd at 1:39pm, he wrote "We're looking like staying together. For now at least. I'll call you soon. Thanks for coming today bro. X".
The appellant's case at the sentence hearing
The appellant was aged 30 years at the date of the offences and 32 years at the date of the sentence hearing. He had no criminal convictions. He is a university graduate who had established his own business involving giving promotional support to charitable organisations. In 2002, he was a contestant on a television show called "Australian Survivor".
The appellant gave evidence before Judge Toner. He said that he had picked up the knife from the kitchen bench just before attacking the complainant and that the decision to stab her had been a spontaneous one. He said he had written the words "You know I love you, but I hate you because I know I could never replace you" because they are the lyrics of a song that he had been learning. He accepted that the words had "resonated with me in the days following the break up". He gave no evidence of being under the effects of a hallucinogenic drug at the time of the offences. He acknowledged his responsibility for his offending and he expressed his remorse for the ordeal to which he had subjected the complainant.
A number of character witnesses gave evidence on the appellant's behalf attesting to the incongruity of the offending behaviour. Judge Toner accepted this evidence as demonstrating that the appellant was considered a generous, honest, loving and reliable individual. Evidence was also led to establish that, in the appellant's early teenage years and continuing into early adulthood, he had been subjected to sustained physical and emotional abuse by his stepfather. Judge Toner described the latter as a "vicious and calculating brute". His Honour found that the stepfather's behaviour had been designed to humiliate the appellant and his mother and brother and subject them to his will.
A report from Dr Lake, a general practitioner, referred to counselling sessions that he had conducted with the appellant on occasions in the years between 2003 and 2008. Dr Lake recorded that the appellant had described feelings of helplessness associated with the emotional and physical abuse inflicted on his mother by his stepfather.
Dr Westmore's evidence
Two reports prepared by a psychiatrist, Dr Westmore, were tendered on the appellant's behalf. In the first report, dated 3 January 2011, Dr Westmore set out the "detailed and complex history" that he had obtained from the appellant in an interview in December 2010. This history included the appellant's account that three days before the offences he had taken an illicit hallucinogenic drug known as DMT, which had felt "like a death experience". The appellant told Dr Westmore that he had taken some more DMT earlier on the morning of the offences, with the result that "I felt like I saw eternity, my mind was just overwhelmed, overcome with these things." Other features of the history included an account of the domestic violence to which the appellant and his mother had been subject.
Dr Westmore's report was obtained at a time when the appellant was contemplating defending the charge of wounding with intent to murder and it is evident that the possibility of a psychiatric defence was being explored. Dr Westmore concluded that there was no clear evidence or indication to suggest that, at the time of the offences, the appellant had been suffering from a drug-induced psychosis. He considered that the appellant did not have a psychiatric defence but that it was likely that the appellant had been depressed at the time of the offending. In this regard, Dr Westmore noted the appellant had been experiencing financial difficulties, his relationship with the complainant had broken down, he was being evicted from his accommodation and he had felt "generally unsupported" at the time.
In September 2011, Dr Westmore was supplied with a copy of Dr Lake's report and with three pages of instructions written by the appellant concerning his experiences with the drug DMT. He was asked whether this material affected the opinions that he had expressed in his earlier report.
In a supplementary report dated 29 September 2011, Dr Westmore noted Dr Lake's account of the appellant's feelings of helplessness over his stepfather's violence and that he had been greatly affected by the abuse of his mother. Dr Westmore also noted the appellant's account of his subjective experience of the drug DMT including that "nothing was really making sense, changes in perceptions of the environment and perhaps frank perceptual disturbances".
Dr Westmore considered that, based on the appellant's history, "it is likely he was adversely affected by the drug DMT at the relevant time including perceptual disturbances and an altered perception of his environment." Dr Westmore maintained that he was unable to indicate that the appellant was suffering from a frank drug-induced psychosis that might be relevant to the commission of the offence. Dr Westmore explained that any illicit substance results in altered perceptions. The appellant had described altered experiences arising from the use of DMT but Dr Westmore was unable to confirm that the appellant had developed a psychotic illness as the result of that use or that he might have a psychiatric defence to the charges. He observed that the Court might take into account that the appellant had used DMT and that the drug had had an adverse effect on him.
The conduct of the appellant's case
Judge Toner's reasons
Judge Toner found that the crimes were planned and that there was nothing "fleeting" about the appellant's intention to kill the complainant. His Honour found that, at least from when the appellant first stabbed the complainant, he was determined that she would die at his hands. The text message sent to Todd at 1:39pm evidenced the appellant's determination that his intention to kill the complainant should not be thwarted. His Honour concluded that the wounding offence was a "sustained and determined attempt" to kill.
Judge Toner rejected that there was a causal link between the appellant's brutal treatment in youth and his commission of the offences. His Honour observed at [54] of his reasons for sentence:
"[T]here is nothing from Dr Westmore's report to say that the [appellant's] conduct was driven from some deep well of a psychologically generated motivation for these crimes springing from what had occurred to him in his adolescence, which history he had and no doubt considered."
It was not submitted that the appellant's culpability should be mitigated because of the influence of drugs on him. Judge Toner considered that the appellant's conduct had been driven by a profound jealousy in the context of the break-up of his relationship with the complainant.
His Honour found that the offences were aggravated under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") by reason that the injury or emotional harm done to the complainant was substantial24 and because she was vulnerable because she was alone in the apartment with the appellant and at his mercy25. His Honour did not accept that the appellant's injuries amounted to a form of extra-curial punishment. His Honour accepted that the injuries would make the appellant's custody more burdensome and he took this into account as a special circumstance justifying an alteration in the statutory proportion between the non-parole period and the overall sentence26.
Proceedings in the Court of Criminal Appeal
The appellant sought leave to appeal to the Court of Criminal Appeal against the severity of the sentences on four grounds. The first and second grounds contended that the sentencing judge erred in finding that the offences were aggravated under s 21A(2)(g) and (l) of the Sentencing Act respectively. The third ground contended that the sentencing judge erred in failing to treat the appellant's injuries as a form of extra-curial punishment. The fourth ground contended that the sentencing judge erred in not having regard to the appellant's injuries in the determination of the overall sentence.
The Court of Criminal Appeal upheld the second and fourth grounds of appeal. Their Honours said it was an error to find the complainant was vulnerable for the purposes of s 21A(2)(l) because this statutory circumstance of aggravation looks to the shared characteristic of a class of victims27. Their Honours also found that the sentencing judge erred in limiting his consideration of the effect of the appellant's injuries to the determination of the non-parole period28.
Having found error, the Court of Criminal Appeal turned to consider the exercise of its sentencing discretion. The Court referred to the material that had been tendered without objection "on the usual basis". This material included certificates of the completion of courses while the appellant was in custody and a number of references attesting to his efforts to make the most of his custodial situation29. As earlier explained, the Court rejected so much of the reports of Dr Nielssen and Mr Roberts as canvassed factors that were considered to have contributed to the offences30. Mr Roberts' opinion that the appellant had an improved ability to address his "re‑development" was acknowledged to be relevant albeit of "limited weight"31.
Notwithstanding the appellant's favourable subjective case, the Court of Criminal Appeal concluded that no lesser sentences were warranted in law. That conclusion took into account that the wounding offence was objectively "very high on the scale"32 for such offences and that the sentence imposed by the sentencing judge was only half the maximum penalty33.
Dr Nielssen's evidence
Dr Nielssen's report is dated 3 May 2014. Dr Nielssen was furnished with, among other things, copies of the indictment, the agreed facts, the reasons for sentence, Dr Westmore's first report, various medical records and a handwritten letter from the appellant. Dr Nielssen interviewed the appellant in person and by video link. He diagnosed the appellant as suffering from "[s]ubstance use disorder, in remission" and "[a]nxiety disorder, in remission". He said that, from the appellant's history, "it seems that he was affected by having taken an unknown quantity of the hallucinogenic drug DMT shortly before the offence, in combination with a moderate quantity of alcohol." He said it seemed that the appellant had "a catastrophic alteration in his perception of events and a loss of capacity for logical thinking around the time of the offence." He observed that multiple self‑inflicted stab wounds to the neck, chest or abdomen are strongly associated with the presence of a psychotic disorder or an equivalent state induced by an hallucinogenic drug.
Dr Nielssen expressed the following opinion:
"From the history provided by [the appellant] and the information in the documents provided, I believe his intoxication with a drug with unpredictable mind altering effects, together with an underlying emotional state shaped by violence and sexual abuse, and a pattern of substance use, was a significant contributing factor to his sudden decision to end his life and to his offending behaviour."
The conduct of the appeal in the Court of Criminal Appeal
Written submissions were filed in the Court of Criminal Appeal on the appellant's behalf. Under the heading "Re-sentencing", reference was made to the additional material. Judge Toner's conclusion, that there was no persuasive material suggesting that the motivation for the crimes was in some way attributable to the history of domestic violence, was suggested to be infirm and it was submitted that Dr Nielssen's opinion "should be reflected in any sentence" imposed upon the appellant.
Nonetheless, contrary to the appellant's submission in this Court, it is by no means clear that senior counsel then appearing for him in the Court of Criminal Appeal squarely invited the Court to set aside Judge Toner's finding and to make a different finding based on Dr Nielssen's opinion. The respondent is right to submit that there was ambiguity in the way the matter was developed before the Court of Criminal Appeal. At the commencement of the hearing senior counsel for the appellant referred to his written submissions and Dr Nielssen's report, noting it contained an opinion which differed from Judge Toner's findings. As noted earlier, a folder of material was handed up on the basis that it would be admissible if the Court came to the question of re-sentence. The prosecutor did not object to the Court receiving the material "on the usual basis". She informed the Court that the material had only been served the preceding afternoon and she had not had an opportunity to look at it.
In the course of submissions, senior counsel referred to [54] of Judge Toner's reasons and said:
"Now it was never our case that the crimes were driven from some deep well of a psychologically generated motivation springing from what had occurred to him in his adolescence. That however is not to disparage the existing state of depression and the childhood abuse which made him the personality that he was, that he was putting in evidence on the subjective material."
The significance of Dr Nielssen's opinion
Senior counsel for the appellant accepted the finding that the offences were committed in a jealous rage and disavowed that it had ever been the appellant's case that they were the product of deep‑seated psychological difficulties stemming from his history of abuse. How, in light of those concessions, it was suggested that, in the event the Court of Criminal Appeal came to exercise its sentencing discretion, it might take into account Dr Nielssen's opinion as part of the "general matrix" was not developed in oral submissions in that Court.
In this Court, the appellant relies on Dr Nielssen's opinion that he suffered "a catastrophic alteration in his perception of events and a loss of capacity for logical thinking around the time of the offence" as the result of taking DMT and that he experienced a "psychotic disorder, or an equivalent state induced by an hallucinogenic or dissociative drug". He submits that it is open to find that the effect of the DMT significantly reduced his capacity for self‑control and appreciation of the wrongfulness of his conduct, lessening his moral culpability for his offences. He submits that he should be sentenced on the law as it stood at the date of the offences and that the prohibition on self‑induced intoxication being taken into account as a mitigating factor when sentencing does not apply in his case34. The correctness of this submission may be accepted for the purpose of the appellant's argument.
At points in the appellant's argument, it was suggested he had not sought to run a case on sentence in the Court of Criminal Appeal that was inconsistent with his case before Judge Toner. He submitted that it was merely that Dr Westmore had been "unable" to make a causal link between his drug use (and underlying difficulties associated with adolescent abuse) and the offences, leaving their commission unexplained. In contrast, Dr Nielssen had been able to discern the connection. That submission is disingenuous. Based upon largely the same material, save for any difference in the history supplied by the appellant, Dr Westmore and Dr Nielssen came to different conclusions with respect to the causal relation of the drug use to the offences. Indeed, Dr Nielssen's opinion that the appellant was in a psychotic state, or its equivalent, would appear to traverse the appellant's pleas.
As the respondent submits, Dr Nielssen's opinion is based on a history which would seem to depart from the agreed facts. Dr Nielssen records the appellant's account that the "attack actually lasted for about 45 seconds, and ended when he took the knife and bent it." With respect to the text messages sent from the complainant's mobile telephone during the assault, Dr Nielssen records the appellant's account that "there is a blurred line between what I sent and what she sent". Annexed to the agreed facts was a schedule setting out the terms of the text messages. It recorded that each of the messages transmitted over the period of the assault was composed and sent by the appellant. It may also be observed that Dr Nielssen refers to the effect of the DMT taken in combination with "a moderate quantity of alcohol". This would seem to be a reference to the consumption of the shochu spirit, which occurred well after the assault on the complainant commenced.
Conclusion
The case that the appellant submits the interests of justice required the Court of Criminal Appeal to take into account in the exercise of its sentencing discretion is inconsistent with the case that was made before Judge Toner. Had the appellant sought to challenge Judge Toner's finding of the cause of his offending on the hearing of his appeal in the Court of Criminal Appeal, it is accepted that Dr Nielssen's evidence may properly have been rejected because it was not fresh evidence. As earlier explained, there is no principled reason for holding that a finding that was not open to challenge on the appeal is susceptible of challenge on new evidence in the event the appellate court comes to consider re-sentencing. The appellant's case before Judge Toner was not that his ingestion of DMT had significantly contributed to his offending. The forensic choice that was made was to accept responsibility for the offences. Nothing in the new evidence supports the submission that the Court of Criminal Appeal's refusal to permit the appellant to run a different case before it has occasioned a miscarriage of justice.
For these reasons the appeal must be dismissed.
Kentwell v The Queen (2014) 252 CLR 601 at 618 [42] per French CJ, Hayne, Bell and Keane JJ; [2014] HCA 37. ↩
Crimes Act 1900 (NSW) ("the Crimes Act"), s 27. ↩
Crimes Act, s 86(2)(b). ↩
Betts v The Queen [2015] NSWCCA 39 at [48] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Betts v The Queen [2015] NSWCCA 39 at [47] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Criminal Appeal Act 1912 (NSW), s 6(3). ↩
R v Lanham [1970] 2 NSWR 217; R v Cartwright (1989) 17 NSWLR 243 at 257-258 per Hunt and Badgery-Parker JJ; Goodwin (1990) 51 A Crim R 328 at 329 per Hunt J; Fordham (1997) 98 A Crim R 359 at 377-378 per Howie AJ. ↩
(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ; [1936] HCA 40. ↩
Skinner v The King (1913) 16 CLR 336 at 340 per Barton ACJ; [1913] HCA 32; Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; [2005] HCA 25; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 579-581 [11]-[14] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10; and see Sidlow (1908) 1 Cr App R 28 at 29 per Lord Alverstone CJ. ↩
R v Vachalec [1981] 1 NSWLR 351 at 353 per Street CJ delivering the judgment of the Court. ↩
Betts
The Queen [2016] HCA 25
(2014) 252 CLR 601
(1989) 17 NSWLR 243
(1936) 55 CLR 499
(1913) 16 CLR 336
(2005) 228 CLR 357
(2011) 242 CLR 573
(1974) 131 CLR 510
(1986) 160 CLR 392
(1995) 16 WAR 219
(2013) 118 SASR 211
Appeal dismissed. The Court left undecided whether s 12(2) of the Criminal Appeal Act 1912 (NSW) permits remittal of a sentence determination to the court of trial.
The appellant accepts that, had the Court of Criminal Appeal taken the new evidence into account, it would have been necessary to resolve inconsistencies between the opinions expressed therein and the opinions expressed in other evidence on which he relied at the sentence hearing. He submits that the proper exercise of the Court of Criminal Appeal's discretion was to remit the proceeding to the District Court under s 12(2) of the CAA. He seeks orders in this Court setting aside the orders of the Court of Criminal Appeal, quashing the sentences imposed by Judge Toner and remitting the proceeding to the District Court.
The Court of Criminal Appeal was not asked to remit the proceedings to the District Court. For that reason, their Honours were not required to consider whether the general power conferred by s 12(2) applies to the determination of an appeal under s 6(3). For the reasons to be given, the appeal must be dismissed. In this circumstance, and given that the question was not raised below, it is inappropriate to determine whether the Court of Criminal Appeal is empowered to remit the determination of an offender's sentence to the court of trial.
The contention that, as a general rule, the appellate court when exercising its sentencing discretion is not confined to the material before the sentencing court is contrary to principle. This conclusion does not dispose of the appellant's narrower case, which is that, in the particular circumstances, the refusal to take into account new evidence casting light on the causes of his singular offending has resulted in a miscarriage of justice. It will be necessary to refer in some detail to the facts and the conduct of the appellant's case below in order to explain why this case must also be rejected. Before doing so, there should be reference to the principles governing the reception of new evidence on the determination of appeals under s 6(3) of the CAA. In light of the parties' submissions, there should also be some reference to the powers of the Court of Criminal Appeal in determining such appeals.
Contrary to the conclusion in Deng, the appellant submits that, once error below is demonstrated, there can be no justification for the exclusion of evidence that is capable of bearing on the appellate court's determination of the appropriate sentence for an offence. He proposes an analogy with the outcome of a successful appeal against conviction where the consequential order is for a new trial: there is no constraint on the way the accused chooses to conduct the second trial. The analogy is hardly apt. When the Court of Criminal Appeal quashes a conviction and orders a new trial18, the successful appellant is restored to the status of an unconvicted person to whom the presumption of innocence applies. The fact that the accused may choose to adduce evidence at the new trial, on which he or she did not rely at the first trial, does not undermine adversarial criminal justice.
Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re‑sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct.
Ultimately the complainant succeeded in escaping onto the balcony and climbing over it to the one below. From there, she succeeded in attracting the attention of passers-by, who came to her aid. She was taken to hospital where she was treated for a total of 28 stab wounds to her face, neck and back. She had also suffered two collapsed lungs and a fracture of the spinous process of the eighth thoracic vertebra.
The appellant was arrested and taken to hospital, where he was treated for multiple stab wounds, including a wound from which his abdominal contents were protruding. He underwent surgery in which a section of his small bowel was removed. Following his initial discharge from hospital on 23 April, he was re-admitted for treatment of complications the following day. The appellant continues to suffer difficulties with his bowel function as a result of the abdominal wound.
When the police searched the apartment, they found a piece of paper on which the appellant had written "You know I love you, but I hate you because I know I could never replace you."
In this Court, the appellant's complaint is confined to the Court of Criminal Appeal's refusal to take into account Dr Nielssen's opinion. It is convenient at this point to refer to that opinion and to how senior counsel then appearing for the appellant sought to deploy it in the Court of Criminal Appeal.
R v Lanham [1970] 2 NSWR 217 at 218. ↩
Ratten v The Queen (1974) 131 CLR 510 at 517 per Barwick CJ; [1974] HCA 35. ↩
Abbott (1985) 17 A Crim R 355; Goodwin (1990) 51 A Crim R 328; Araya (1992) 63 A Crim R 123 at 129-130 per Gleeson CJ; Fordham (1997) 98 A Crim R 359 at 377-378 per Howie AJ; see also Gallagher v The Queen (1986) 160 CLR 392 at 395 per Gibbs CJ; [1986] HCA 26. ↩
Kentwell v The Queen (2014) 252 CLR 601 at 618 [43] per French CJ, Hayne, Bell and Keane JJ, citing Douar v The Queen (2005) 159 A Crim R 154 at 178 [124] per Johnson J. ↩
R v Deng (2007) 176 A Crim R 1 at 8 [28] per James J. ↩
Betts v The Queen [2015] NSWCCA 39 at [43] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
(2007) 176 A Crim R 1 at 11 [45] per James J. ↩
CAA, s 8(1). ↩
Section 12(1) is modelled on s 9 of the Criminal Appeal Act 1907 (UK). The history leading to the enactment of the latter statute is traced by Professor Pattenden: English Criminal Appeals: 1844-1994, (1996). ↩
See R v T [1995] 2 Qd R 192; R v Wong (1995) 16 WAR 219; Webber (1996) 86 A Crim R 361 at 365 per Winneke P; R v Ferrari [1997] 2 Qd R 472; R v Palmieri [1998] 1 VR 486 at 501-502 per Charles JA; Thompson (2000) 113 A Crim R 295; R v Kreutzer (2013) 118 SASR 211 at 214 [9] per Kourakis CJ, 227 [55] per Gray and Blue JJ. ↩
Criminal Appeal (Amendment) Act 1987 (NSW), s 3, Sched 1 Item 3. ↩
In his speech on the second reading for the Supreme Court (Appeals) Amendment Bill and the Criminal Appeal (Amendment) Bill, the Attorney-General referred to the introduction of the general power of remitter in this way: "This power will be of great assistance in matters where, for example, there are deficiencies in the evidence or where there are further matters to be considered which can be better attended to before a first-instance judge. These bills are a rationalization of existing avenues of appeal from interlocutory applications in criminal proceedings on indictment in the District Court and the Supreme Court, while ensuring that issues can be dealt with which justice requires should be resolved prior to the completion of a trial." New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 17 November 1987 at 16088-16089. ↩
[2010] NSWCCA 42 at [30] per Basten JA, [56] per Johnson J. ↩
Sentencing Act, s 21A(2)(g). ↩
Sentencing Act, s 21A(2)(l). ↩
Sentencing Act, s 44. ↩
Betts v The Queen [2015] NSWCCA 39 at [29] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Betts v The Queen [2015] NSWCCA 39 at [38] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Betts v The Queen [2015] NSWCCA 39 at [46] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Betts v The Queen [2015] NSWCCA 39 at [47] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Betts v The Queen [2015] NSWCCA 39 at [47] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Betts v The Queen [2015] NSWCCA 39 at [40] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Betts v The Queen [2015] NSWCCA 39 at [48] per RS Hulme AJ (Meagher JA agreeing at [1], Hidden J agreeing at [2]). ↩
Section 21A(5AA) of the Sentencing Act, which provides that in determining the appropriate sentence for an offence the court is not to take the self-induced intoxication of the offender into account as a mitigating factor, commenced on 31 January 2014. ↩