R H McL v The Queen

R H McL v The Queen - [2000] HCA 46 - HCA 2000 case summary — Zoe

[8]

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:

[18]

"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)

[19]

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.
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]:

[28]

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.
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.
The purpose of s 569(1) was explained by Brennan J in Ryan[23] as follows:

[33]

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.

[35]

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.

[63]

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.

[81]

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.
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.

[82]

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.
If the appellant is convicted and receives a sentence that is made wholly or partly cumulative on his existing sentences, he will have the right to seek leave to appeal against that sentence. His rights in such circumstances will be no different than they would have been if he had obtained a re-trial on all counts of the indictment. If that had occurred and he was again convicted, he would then be at risk that the sentencing judge at that re-trial might impose sentences longer than those imposed at the first trial. Whether such sentences should stand would depend on what sentences were appropriate for his total criminality and on the fact that at his first trial the total effective sentence was 12 years.
It follows in our opinion that the appellant suffered no injustice when the Court of Appeal thought that it was necessary to increase the various sentences in the way that it did. The sentences in respect of those convictions were appropriate given the criminality involved. That was because Judge Harbison had reduced the sentences that were appropriate to each conviction in order to ensure that the totality of the appellant's sentences did not exceed what was appropriate having regard to his total criminality.
In modern times, s 569(1) of the Act is likely to have its most frequent operation in circumstances where the sentencing judge has compressed sentences by reason of the totality principle. There would be less occasion for the Court of Appeal to exercise its powers under that sub-section if sentencing judges imposed the sentence appropriate in respect of each conviction and then gave effect to the totality principle, where that principle did require a reduction of the cumulative effect of the sentences, by making concurrent any sentence or sentences that conflicted with the totality principle.
The need for judges not to compress sentences is especially important where the accused person is a "serious sexual offender" within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.

[86]

The facts of this case are set out in the reasons of Gleeson CJ, Gaudron and Callinan JJ[46], as are the conclusions and reasons of the sentencing judge, Judge Harbison, who convicted and sentenced the appellant following his trial in the County Court of Victoria. Likewise, what happened in the Court of Appeal of Victoria[47] is explained by McHugh, Gummow and Hayne JJ[48], including the reasons for the substituted sentence which the Court of Appeal imposed on the appellant in light of its orders upholding, in part, the appeal against his conviction. The table set out in their Honours' reasons[49] graphically illustrates what occurred.
The appellant, by special leave, appeals to this Court complaining that although he ostensibly succeeded in his appeal (and was thus justified in law in bringing it), in substance he is now significantly worse off. He is exposed to a risk of retrial on four counts of the original presentment yet his effective custodial sentence on the remaining counts is exactly the same as it was. He argues, in effect, that a reasonable outsider might conclude, as he did, that the legal system had pretended to vindicate him but had retained the last laugh and effectively punished him additionally for his impudence in challenging its orders.
The terms of s 569(1) of the Crimes Act 1958 (Vic) ("the Crimes Act") are set out in the reasons of Gleeson CJ, Gaudron and Callinan JJ[50]. I will not repeat them. The heading to s 569 is "Powers of Court in special cases". Provision is made in the Crimes Act for the determination of appeals in "ordinary cases". An "ordinary case" is one where, by leave, the convicted person appeals against sentence[51]. By an amendment introduced into the Crimes Act in 1970[52], the Director of Public Prosecutions may also appeal in a case where he or she considers that a different sentence should have been passed and is satisfied that an appeal should be brought in the public interest[53]. In respect of an appeal by the convicted person under sentence, or by the Director of Public Prosecutions, the Court of Appeal is empowered to impose a different sentence "whether more or less severe"[54]. These provisions make it clear that in appeals against sentence, the Court of Appeal is empowered to impose a "more severe" sentence. There is no precisely equivalent phrase in s 569(1).
The provisions of the Sentencing Act 1991 (Vic) ("the Sentencing Act") relating to "serious sexual offender[s]" should also be noted. Such provisions were amended with effect soon after the appellant was presented for trial in July 1997 by the substitution of s 6E for s 16(3A) of the Sentencing Act. However, there is no relevant difference. Each provision is designed to ensure that, save in the case where the sentencing judge exceptionally decides otherwise, "serious sexual offender[s]" convicted of further offences will ordinarily serve the sentence imposed for conviction of those further offences cumulatively upon earlier sentences[55].

[87]

I should collect a number of matters of common ground so that they may be put to one side. First, it was accepted for the appellant that the formal preconditions for the exercise of the power conferred on the Court of Appeal by s 569(1) of the Crimes Act were satisfied. The argument about a lack of power to apply the sub-section was said to arise primarily upon a true construction of the meaning and operation of the sub-section and by virtue of there being a lack of sufficient connection between the sentence passed "in substitution" and the sentence passed on the appellant at trial.
Secondly, it was agreed that, if the Court of Appeal had not invoked s 569(1) of the Crimes Act, the result of affirming the sentences passed on the appellant at trial, in respect of those counts on which he had been properly convicted, would have been the imposition of a maximum term of imprisonment of eight and a half years. There was some dispute about the non-parole period which would then ordinarily have been fixed. There is no statutory ratio required between the two periods. It is within the discretion of the court sentencing the offender. The prosecution suggested that it would be of the order of five years.
Thirdly, it was agreed that, if the appellant were presented for retrial in relation to four counts of the original presentment, and if he were convicted on such counts, he would be liable to be sentenced in respect of such convictions as a "serious sexual offender". He would then have to be sentenced in accordance with s 6E of the Sentencing Act. Whilst there is a possibility that the appellant might not be retried for those offences, the issues of principle in this appeal have to be considered on the footing that such a course was within the contemplation of the orders which the Court of Appeal made. Although the judge of the second trial might order, if the appellant were convicted, that any new sentence should be served concurrently with any sentences still outstanding following the first trial, the Crown accepted that it could not be said that no greater sentence would be imposed if the appellant were convicted at a second trial. This was a proper concession.
The Parliament of Victoria has indicated its purpose that "serious sexual offender[s]" should ordinarily undergo cumulative sentencing for later sexual offences[56]. However, any delay in the retrial would diminish the time available for ordering that any sentences be served concurrently. It necessarily follows that, if the appellant were retried and convicted, the outcome of the retrial could potentially result in an increased custodial sentence consequent on his successful appeal to the Court of Appeal. It was that appeal alone that had attracted the power for which s 569(1) of the Crimes Act provides.
Fourthly, it was not disputed by the prosecution that, in the exercise of the power conferred by s 569(1) of the Crimes Act, the Court of Appeal was obliged to perform its functions with considerable care, especially where it had ordered a retrial on some counts. Necessarily, the outcome of the retrial would be unknown at the time of the resentencing. Moreover, it was accepted that the general principle to be observed in resentencing a person in consequence of a successful appeal (whether at a second trial or in an appellate court) was that such person ought not ordinarily to be worse off, in terms of sentence, as a result of having appealed successfully.

[93]

The statutory provisions, of which s 569 of the Crimes Act is an example, must be understood against the background of the pre-existing law and practice. Appeal is a creature of statute[57]. Before the statutory rights of appeal in criminal matters existed it was extremely rare for a Court of Error to concern itself in matters of sentencing. The English practice to the nineteenth century was usually to impose a general sentence following conviction upon multiple counts[58]. If a Court of Error set aside conviction on some only of the counts of an indictment, it would sometimes inquire whether the general sentence previously imposed was legally sustained by the conviction on the remaining counts[59]. However, such a court had no power to order a retrial. Only if the appeal were successful on all counts would the accused have to be discharged[60].
In 1844, in O'Connell v The Queen[61], the House of Lords foreshadowed later sentencing practice by suggesting that, in cases of conviction on a multi‑count indictment, each count should attract its own separate sentence. Their Lordships concluded that, where conviction on a number of counts of a multi‑count indictment occurred, it was not always appropriate that the general sentence imposed on different premises should be sustained. Soon after this decision, the Crown Cases Act 1848 (UK)[62] was passed whereby, should a Court of Error reverse a judgment, it was competent for it "either to pronounce the proper judgment or to remit the record to the court below, in order that such Court may pronounce the proper judgment". This provision is obviously the source of the subsequent English enactment[63] which gave rise, in Australia, to the provisions of which s 569(1) of the Crimes Act is now, in Victoria, the modern equivalent[64].
The operation of the Crown Cases Act arose for consideration in 1851 in Holloway v The Queen[65]. That was a case where a prisoner had been convicted on an indictment containing nine counts. A Court of Quarter Sessions had imposed a general sentence that he be transported to the colonies. Explaining the operation of s 5 of the Crown Cases Act, Lord Campbell CJ said[66]:

[97]

One other later change to the template from which the provision in s 569(1) of the Crimes Act comes may be noted. In 1967, what had been an appeal against "the sentence" in s 3 of the Criminal Appeal Act 1907 (UK) was changed so that it was treated as an appeal against any or all other sentences passed in the same proceedings[74]. These changes, together with the introduction of the power to order a retrial, significantly altered the legislative background against which judicial pronouncements of the English courts must be understood.
For most of the twentieth century, there was no power in England to order a retrial on all or some counts of an indictment following a successful appeal. To the extent that the appellant succeeded, he or she was discharged from any further liability in respect of the subject matters upon which the appeal was upheld. Accordingly, in the rare consideration given in England to the equivalent to s 569(1) of the Crimes Act, no judicial thought had to be assigned to the possibility that, as a result of a retrial, further punishment might be imposed on the appellant. For this reason, in England and in those of its former colonies that adhered to its original template[75], such a prospect could be ignored. Any resentencing was confined to the remaining counts for which the conviction stood. From the beginning, this was not the case in Victoria or the other Australian jurisdictions. The possibility of retrial, conviction and the imposition of a further sentence was thus a contextual consideration relevant to the operation of provisions such as s 569(1) of the Crimes Act. It was applicable in the present proceedings.
Allowing that the statutory context for the application of the English provision was, from the start, different from the Australian context and, since 1967, that its exercise in England has been controlled by the statutory ceiling referred to, it is nonetheless striking that the provision came up for consideration so rarely. This was so although it must be assumed that many cases arose where a conviction was set aside on some only of the counts of an indictment so enlivening the power to resentence according to the broad view of that power maintained by the prosecution in these proceedings.
In 1939, where a conviction on certain counts was quashed by the English Court of Criminal Appeal and where conviction on other counts was affirmed, that Court considered that it was within its power to treat the appellant's notice of appeal "as if it had included an appeal against sentence"[76]. Doing so, the Court reduced the sentence to one proper to those counts only on which the appellant's conviction then rested[77].
In 1941, where a conviction of offences against the Treachery Act 1940 (UK) in wartime resulted in a sentence of death, the convictions on the two counts containing the capital charge were quashed on appeal. The English Court of Criminal Appeal then regarded itself as entitled, the verdicts of guilty on the non-capital counts remaining and the trial judge having imposed no sentence on these counts, to sentence the appellant to fourteen years penal servitude in respect of her conviction on those counts[78].
In 1956, the same Court, having quashed a conviction of attempted rape, proceeded to resentence the appellant in respect of a conviction of an offence of indecent assault. The Court substituted for the sentence of two years imprisonment (which it found "quite inadequate"[79]) its own sentence of preventive detention for six years. That was the same as the trial judge had imposed in respect of the conviction of the crime of attempted rape which the appellate court had set aside. In explaining the resentencing, Lord Goddard CJ said[80]:

[104]

In Ryan, the appellant stood his trial on a presentment containing two counts of trafficking in heroin and four of handling stolen goods. He was convicted on one count of trafficking and on the four counts of handling. In respect of the trafficking count, he was sentenced to four years imprisonment. On each of the handling counts, he was sentenced to six months imprisonment. The sentences on two of the handling counts were made cumulative on the other two handling counts. The other sentences were ordered to be served concurrently.
The Court of Criminal Appeal of Victoria allowed an appeal by the appellant against the conviction for trafficking. It quashed that conviction and ordered a new trial. It considered that, if the appellant had been sentenced on the four counts of handling in isolation from the sentence for trafficking, he would have received a greater effective sentence than twelve months imprisonment. In that respect, the case bears strong parallels to the conclusion reached by the Court of Appeal in the present matter. Substituted terms of eighteen months imprisonment for each of the four handling counts were imposed with two terms to be cumulative and the other two concurrent. In the result, the appellant was sentenced to an effective aggregate of three years imprisonment. Unlike the present orders, the substituted sentence in Ryan was less than the sentence imposed at trial.
The prisoner then appealed successfully to this Court. This Court unanimously held that s 569(1) of the Crimes Act did not entitle the Court of Criminal Appeal to increase the sentences on the handling counts. The reasoning of the participating judges differed. A majority, comprising Wilson J (with whom Gibbs CJ agreed) and Aickin J, so held on the footing that s 569(1) did not authorise interference with sentences separately imposed on counts which were not the subject of any appeal[86]. Stephen J concluded that the appellate court could not, within the terms of the sub-section, determine the correctness of a conviction on the "other counts" because they were not before the Court[87]. To that extent, there was some common ground with the foregoing opinions. Brennan J took a wider view of the power of the appellate court. But he held that, in the circumstances, the counts of trafficking ought not to have been joined with those of handling[88]. Accordingly, it was not appropriate to increase the sentences on convictions which were unconnected with the appeal and which should not, therefore, have arisen for sentence if the presentment had followed the rules governing the regular framing of such documents.
It is, I think, a fair observation about Ryan that ascertainment of the ratio which it establishes is "not without its difficulties"[89]. In order to find the binding rule, it is necessary to consider the opinions of all of the participating judges, given that all of them concurred in the orders that the appeal be allowed and the sentences imposed by the trial judge in respect of the conviction on the handling charges should be restored[90]. The approach of Brennan J, founded on the impermissible combination of the counts of the presentment can, I think, be disregarded for immediate purposes. It was not a view taken by any other member of this Court. It is certainly irrelevant to the present proceeding where there is no contest that the counts included in the presentment against the appellant were lawfully and properly combined. Amongst the other members of the Court in Ryan, the critical consideration was the absence of an appeal initiating the jurisdiction of the Court of Criminal Appeal in respect either of the conviction of, or sentence for, the handling charges. For different reasons, this was viewed as disqualifying the appellate court from taking an initiative of its own in respect of the sentences on those matters.
I therefore agree with the analysis of Callaway JA in R v Gibb[91] that the sentence which may be either affirmed or replaced by a substituted sentence must be a sentence which has a direct relation to the conviction which has been quashed. His Honour cites[92] with approval the following statement of Wilson J in Ryan[93]:

[110]

Against this background of principle and context, the appellant suggested that the power conferred by s 569(1) of the Crimes Act should be given a strict and limited operation, in harmony with the approach favoured in Ryan and Neal. The textual foundation for limiting the operation of the sub-section in a case such as the present was, it was submitted, to be found in the terms of s 569(1) in which the power was conferred: "or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law" (emphasis added). The appellant urged that the act of "substitution" limited the substituted sentence imposed to one which could truly be said to be "in substitution". This required a restricted view of the power of resentencing. If it were otherwise, it would impose on an appellate court a most burdensome obligation of involving itself afresh in all of the detail of fixing a proper sentence, for it would have no power (as it does in the case of an appeal against sentence) to remit the resentencing to the court of trial[100]. The fact that this facility was not available to the appellate court under s 569(1) gave a further contextual clue, so it was argued, that the power was a limited one. It would only arise where there was a need to refix the non-parole period required by different residual aggregate sentences.
The appellant himself needed to invoke s 569(1) of the Crimes Act in order to secure a shorter non-parole period for the aggregate sentences on the convictions which were affirmed, for there was no equivalent power afforded by the Sentencing Act[101]. But the appellant suggested that the non-parole period, being "an integrated whole [that] was not separately imposed"[102], was in its nature analogous to a general sentence. He argued that other cases where s 569(1) of the Crimes Act would apply would include where a judge had passed no sentence in respect of particular counts. The requirement of a warrant in law signalled, so it was suggested, the limited function given to the appellate court. It restrained any temptation to engage in a total resentencing of the appellant according to the appellate court's own intuition. In these circumstances, the appellant submitted that the present was a case either where there was no power to resentence or where it was not proper for the exercise of the power leading to an increase of the sentences on convictions which were "unconnected with the case before it"[103].
In answer to these submissions, the respondent relied on the language of the sub-section, the series of English cases in which the sub-section had been widely construed and the absence of any attempt to cut down or restrict the power as it exists in the Crimes Act, despite numerous legislative opportunities to do so. The respondent argued that three textual considerations in the sub-section supported the construction which the Court of Appeal had adopted. The first was the choice which the Court had to make between either affirming the sentence passed or passing a substitute sentence. The prospect of having to "affirm" a sentence which was considered inappropriate, and either excessive or inadequate in the circumstances that had transpired, suggested that the alternative power of "substitution" was a real one, intended to be used where affirming would be inappropriate. A court would not be obliged to "affirm" a seriously erroneous sentence.
Secondly, the "sentence in substitution" referred to was the sentence in substitution for the one "passed on the appellant at the trial". This was to be read in the context of a case in which the sub-section is only attracted when the appellant has been "properly convicted on some other count or part of the indictment" but not on another "count" or "part of the indictment".
Thirdly, the prosecution argued that where, as in this case, the power and authority was imposed on a court, what was involved in the use of the verb "may" was not a discretion at large[104]. Rather, it was a statutory power or authority which the repository would be required to exercise in a lawful manner having regard to the purposes for which it has been conferred.

[112]

In my view, the submissions of the respondent were correct on this point. One can accept to the full both the statutory and common law context in which the language of s 569(1) of the Crimes Act is to be read. One can accept that, especially where a retrial on certain counts has been ordered, the authority conferred by the sub-section will be exercised cautiously. Any substitute sentence warranted in law will take into account the possible significance of a retrial order. But the language of the sub-section and the need for it to operate in a wide range of circumstances argue against the gloss which the appellant sought to read into its terms. In some cases, indeed, not limited to the substitution of a different minimum term of imprisonment, the authority provided by the sub‑section is beneficial and protective of the rights of an appellant[105]. Because the authority is conferred on a court, indeed on an appellate court of a superior court of record, it may be assumed that the authority will be exercised prudently. The record of its exercise, and the rarity of challenges to it, suggest that this is not a misplaced presumption. In the event of error in the exercise of the power, it is subject to the possibility of appeal to this Court.
Inherent in the logic of the appellant's argument on this point was the contention that the only circumstances where substitution for the overall sentence would be proper would be a case where the offender or the prosecution or both had brought an appeal against sentence. In the case of the prosecution, this is difficult to reconcile with the statutory duty to bring such appeals only where the Director of Public Prosecutions is convinced that it is necessary to do so "in the public interest"[106]. Appeals challenge orders, not, as such, the reasoning on which those orders rest[107]. It would be contrary to the public interest effectively to impose on the Director of Public Prosecutions obligations to bring appeals against sentence, even defensively, where there is no complaint about the aggregate punishment imposed, simply to enliven the appellate power to substitute a different sentence.
I do not agree that the terms of s 569(1) of the Crimes Act contemplate that the appellate court will, where substitution of sentence is envisaged, be involved in a major task of resentencing. The nature and scope of the function is indicated by the court to which it is assigned, the way in which it arises and the character of the new sentence as a "substitute" for that passed on the appellant at trial. In appropriate circumstances, fresh materials can and should be received relating to any significant change that has occurred since the original sentence was imposed[108]. But, ordinarily, the appellate court would simply act on the materials relevant to sentence that were adduced at the trial. There is nothing in the language of the sub-section limiting it to the necessary refixing of a non‑parole period.
There is an obvious inconsistency between the appellant's desire to read a limitation into the power afforded by the sub-section but to preserve for himself the benefits, under it, of the substitution of a new minimum term of imprisonment. At least in a case such as the present where it is possible for the appellate court to reach a conclusion, within the issues before it, as to those counts or parts of a presentment on which "the appellant has been properly convicted", its power and authority to affirm the sentence passed on the appellant at trial or pass another sentence in substitution, is that stated in s 569(1) of the Crimes Act. It is a large power. The first challenge of the appellant to the power of the Court of Appeal to act as it did therefore fails.

[114]

Without opposition, at the hearing before this Court, the appellant was permitted to add a ground of appeal complaining that the manner in which the Court of Appeal effectively increased his sentence constituted a departure from the requirements of procedural fairness. It was not contested that, in exercising the power conferred on it by s 569(1) of the Crimes Act, the Court of Appeal was obliged to accord to the appellant the basic requirements of fair procedure. What those requirements involve depends on the circumstances of the case[109].
Where a power is exercised which derives, as s 569(1) of the Crimes Act does, from statute, the scope of the requirements of procedural fairness depends on the terms and presumed operation of the statute[110]. The duty to accord procedural fairness is concerned not with form, but with substance[111]. Central to the requirement in a context such as the present is the need to afford a person involved an effective opportunity to be heard before any substituted sentence is passed, and particularly where such sentence might carry the possibility of increasing that person's punishment.
For a long time, appellate courts in Australia have followed a practice of informing an appellant when the court has reached a tentative conclusion that, as a result of invoking the appellate process, the appellant stands in risk of a punishment more severe than that previously imposed[112]. The purpose of providing such a notice includes that of affording the appellant, in an appropriate case, the opportunity to consider withdrawing or seeking leave to withdraw the appeal or part of the appeal so as to avoid an outcome that could not have been contemplated in initiating the appeal. Additionally, such a notice gives the appellant the opportunity, by evidence and argument, to persuade the appellate court to change its tentative opinion. Support for viewing such a notice as included in the fair conduct of proceedings before an appellate court in Australia can be found in decisions of this Court[113].
Although the principle just stated applies more generally to appellate proceedings, it has special significance in a criminal appeal in which a tentative view is formed by the appellate court that, in its disposition of the appeal, a more severe punishment of the appellant might be called for. Because imprisonment is the most severe sanction known to the criminal law in Australia, the provision of notice will ordinarily apply with particular force where the appellate court is contemplating the substitution of a sentence of imprisonment for a non-custodial sentence[114] or an increase in custodial punishment[115]. In this regard, the content of the requirement of procedural fairness is concerned with the effect on the punishment if it were altered[116]. Because the requirements of procedural fairness depend upon all the circumstances, the obligation has not settled into a rigid rule of law[117]. It does not oblige a court to spell out all of the detriments that may conceivably flow to an appellant[118]. At least where the appellant is legally represented and it is not apparent that such a representative has failed to appreciate a warning once given[119], it is not essential to express in fine detail what may follow if the appeal proceeds to finality. The content of the obligation of procedural fairness in such a case depends on the circumstances and the procedure by which the complaint concerning the want of procedural fairness is raised[120].
Nevertheless, the good practice which has long been followed in sentencing appeals in most courts of Australia, of alerting an appellant once the appellate court has formed a tentative view that the appeal might result in increased punishment, has now been endorsed as a proper standard by appellate decisions in several Australian jurisdictions. The principle has been accepted in New South Wales[121]. It has been followed in Victoria[122] and South Australia[123]. It can be taken as an accepted obligation imposed by the requirements of procedural fairness that due notice will be given to an appellant that an appellate court is contemplating a substantive increase in the punishment imposed upon him or her.
Naturally, care must be observed in affording such a warning so that it is not, and does not appear to be, an indication of pre-judgment of the merits of the appeal signalled at a time before the appellant has had the opportunity of demonstrating these. Care should also be taken to avoid misinterpretation of the warning as a threat to dissuade an appellant from proceeding with a justifiable appeal against conviction. But although there are sometimes risks that a warning may be misinterpreted, a more serious potential injustice is done if the appellate court contemplates the imposition of a more severe punishment and does not draw this tentative view to the notice of the appellant for the two purposes that I have mentioned. Sometimes, in such circumstances, unpalatable decisions have to be made by an appellant. They may not be made at all if the appellant is not given a fair opportunity to do so.
In the present case, what happened is to be gathered from the statement of agreed facts, as elaborated without objection before this Court. In what occurred, I see no departure by the Court of Appeal from the requirements of procedural fairness, whether as stated in the authorities which I have mentioned or otherwise. In the context of the earlier information which led to the withdrawal of the appellant's appeal against his sentence, the later questions addressed to the parties by the Court of Appeal were perfectly proper. They were clear enough. This is not a case where the appellate court failed to signal the way in which its consideration of the issues was developing. On the contrary, exceptionally, the Court relisted the appeal for further oral submissions on the precise issue concerning the application of s 569(1) of the Crimes Act on the hypothesis which eventually provided the foundation for the application of the sub-section. The appellant was at that stage represented by senior counsel. It is said that the Court of Appeal would not (the matter then standing for judgment) have given leave to the appellant to withdraw the appeal. But this cannot be known as no application to that end was made.
As recorded, the Director of Public Prosecutions did not himself urge upon the Court of Appeal an effective increase in the appellant's punishment. He contented himself with simply drawing to the Court's notice the scope of its powers. He did so in terms which I have held to have been accurate. Once the parties were summoned back to the Court it is properly conceded for the appellant that an appreciation of the risk of proceeding with the appeal was inescapable. I therefore see no defect in the procedures observed by the Court of Appeal. It follows that the second attack on the substituted sentence which followed must be rejected.

[115]

I reach the third criticism of the course adopted by the Court of Appeal. The appellant contended that, in the circumstances, the Court of Appeal had no power to resentence him as it did[124]. In this Court, that contention was not advanced in terms of a miscarriage of the discretion reposed in the Court of Appeal. Instead, it was submitted that the power or authority of that Court to act under s 569(1) of the Crimes Act, once found, had to be exercised by reference to relevant considerations. It was submitted that the Court of Appeal had failed to take into account one of these considerations or to explain this omission satisfactorily and in specific terms. Therefore, the exercise of its power and authority miscarried. If these premises could be established, it would either fall to this Court to re-exercise the power lawfully or to remit the matter to be redetermined by the Court of Appeal, taking into account the applicable considerations and giving explicit reasons for its decision on the point.
It is appropriate to start analysis of the principle which the appellant invoked by a reminder that the decisions of English and other courts on the point here in issue will be of little or no assistance because of the absence, until recently, of a power in an appellate court in that country to order the retrial of an accused person on a count or counts in respect of which a conviction has been quashed on appeal. Not only was this facility unavailable in England until 1964[125], but when, at last, it was provided, it was subject to a statutory control limiting a second sentence to one "not being a sentence of greater severity than that passed on the original conviction"[126]. There is no such statutory "ceiling" imposed on the exercise by the Court of Appeal of Victoria of the power afforded by s 569(1) of the Crimes Act. So the statutory context is different. The appellant, however, urged that, as with other fundamental principles lately expressed in statutory form (such as the imposition of a custodial sentence as a last resort)[127], the common law will fill the gaps in the legislation. The common law would require the Court of Appeal to exercise its power, if not limited to the "ceiling" as a matter of power, at least as obliged to consider the undesirability of exceeding that "ceiling", absent very strong reasons to the contrary. Alternatively, it would require that Court to explain any such omission with clear reasons.
The beginning of Australian authority relevant to the point may be traced to R v Garrett in the South Australian Court of Criminal Appeal[128]. That, like several of the cases which followed, involved the resentence of an offender found guilty and convicted at a second trial, an earlier conviction and sentence having been quashed following a first appeal. In Garrett, Hogarth ACJ and White AJ considered the proper approach to resentencing that should be observed by the judge at the second trial, following a second conviction of the appellant. According to their Honours[129], the second judge:

[123]

In his dissenting opinion in Gilmore, Begg J cited Garrett and Emery. He said he was "unable to find" the "principle of sentencing" referred to by the majority[137]. However, despite this dissent, the approach expressed by the majority in Gilmore is, I believe, a correct one. Moreover, it has become refined and generally accepted in other Australian jurisdictions. Absolutes in respect of sentencing or resentencing are rarely observed. Thus, it is trite to remember that, in a successful prosecution appeal against sentence, the appellate court does not regard itself as entitled to impose on the unsuccessful respondent a fresh sentence which consideration of the case might have justified at first instance. In such cases, it is common for moderation to be observed. The judges engaged in resentencing are controlled, to some extent, by any leniency previously afforded to the offender[138]. This approach is regularly adopted in sentencing appeals. In my view it is a correct one.
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.
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]:

[132]

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.

[134]

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.
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.

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