R v Carroll, Carroll v R

[2010] NSWCCA 55

Court of Criminal Appeal (NSW)|2009-12-09|Before: Spigelman CJ, Allsop P, Kirby J, Howie J, Johnson J, Ms J, Dr J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2009-12-09

Before

Spigelman CJ, Allsop P, Kirby J, Howie J, Johnson J

Source

Original judgment source is linked above.

Judgment (10 paragraphs)

[1]

The application to amend the notice of appeal 39 At the hearing on 10 July 2009 the Crown applied to amend its notice of appeal by particularising six grounds: "The sentence was manifestly inadequate because the sentencing Judge erred in the following respects: 1. Finding that the youth of the respondent and the need to foster his rehabilitation reduced the need for retribution and general deterrence; 2. Gave too much weight to the respondent's subjective circumstances and failed to appreciate the objective seriousness of the offence; 3. Finding that there were exceptional circumstances such that a sentence of periodic detention would reflect the objective seriousness of the offence and fulfil the manifold purposes of punishment; 4. Finding (at ROS 2.7), being an error of fact, that the respondent was 'about 15 metres in front of the group before the victim approached Ms Kitchener, rush past Ms Kitchener and his brother and said, "You, want to talk about gun" and head butted the victim in the face' - par [15] Crown submissions; 5. Having already taken youth into account as a mitigating factor, using it again to find special circumstances - par [22] Crown submissions; 6. The reason for finding special circumstances, for special psychological treatment, did not ultimately become the fact because periodic detention was imposed - par [23] Crown submissions." 40 Whilst the remitter under s 37 did not prevent this Court entertaining the application, whether it should be granted is another matter. The six grounds need to be viewed in two distinct groups. The first three were the matters raised and argued in the first appeal to this Court and in the High Court. At that time, a procedure was then generally adopted by the Crown not to particularise generally worded notices of appeal that referred to manifest inadequacy. The consequences of this can be seen in the High Court's reasons in [8] and [9] and in this Court's reasons in R v JW. 41 We see no unfairness in permitting the first three grounds to be included in the notice of appeal. It will regularise the argument to reflect what was remitted from the High Court. 42 The second three grounds are in a different category. These matters were first raised over twelve months after the appeal was instituted and after two appeal hearings: in this Court on the first occasion and in the High Court. In the light of the matters to which we make reference below in sentencing Mr Carroll, there is a degree of unfairness and oppression in the Crown expanding its case at this late stage. It can be met, no doubt. But in facing his third appellate process, Mr Carroll might be thought to be entitled to a modicum of stability in what is put against him by the Crown. 43 We would be inclined to reject the amendment by adding the three new grounds on this basis alone. However, we are of the view that the sentencing judge erred in the characterisation of the objective seriousness of the offence and in her treatment of general deterrence (matters covered by grounds 1 and 2 of the notice of appeal). In these circumstances, the three later grounds are unnecessary. In these circumstances, we would reject the application to amend the notice of appeal by relying upon grounds 4, 5 and 6.

[2]

44 The following recitation of facts is taken from the sentencing judge's remarks. At 1 pm, on Sunday 20 May 2007, Mr Carroll, his older brother, and a friend went to the Gladstone Hotel in Marrickville. There they had lunch, drank alcohol and watched football on the television. While there, they socialised with two young women. While Mr Carroll and the others were at the hotel, the victim and a 55 year old friend were at the hotel drinking and playing the gaming machines. Shortly before closing time at 10 pm, one of the two women had a conversation with the victim and his friend. The young woman apparently convinced the victim to collect his winnings (some $700) rather than continuing to play and lose any more than the $300 he had already lost. Having been convinced to quit while he was ahead, the victim handed the young woman $50 to buy a round of drinks for her group of friends. She took the money, but as the bar was closed she was prevented from purchasing another round. She attempted to return the $50 to the victim. He would not take it. He suggested she try the bottle shop. She kept the money and returned to the group that included Mr Carroll. Shortly thereafter, Mr Carroll, his brother, his friend and the two young women left the hotel, heading in the direction of Mr Carroll's home. At about the same time, the victim walked out of the hotel. It is convenient to set out the terms of the findings of the sentencing judge as to what then happened: "[Mr Criniti] called out to [the young woman] 'Hey give me my $50'. He then approached the group and said to [the young woman], 'Where's the $50?'. [She] said to [Mr Carroll's brother] 'I've got the $50, I can give it back to him'. [Mr Carroll's brother] said, 'No, no, no, fuck it'. [Mr Carroll's friend] said to the victim, 'What's your problem? Fuck off and go home.' At this time the victim was standing in front of [the young woman] and [Mr Carroll's brother]. It is alleged that [Mr Carroll's brother] pushed the victim causing him to take one step backwards. After being pushed the victim said, 'I'll get a gun and shoot youse all'. He was also heard to say, 'I'm going to kill your whole family' by a young man who worked in a restaurant close by. The offender, who had been about 15 metres in front of the group before the victim approached [the young woman], rushed past [her] and his brother and said, 'You want to talk about guns' and head butted the victim in the face. The victim immediately fell backwards onto Marrickville Road where the back of his head hit the roadway with force. [Mr Criniti's friend] and a female shopkeeper went to his aid. The offender told his brother to ring an ambulance and he did so. The offender and his friends then returned home. [Mr Carroll's friend] asked the offender, 'What happened?' The offender replied, 'I head butted him'." 45 The sentencing judge recounted the observations of the ambulance officer as follows: "… he noticed the victim had swelling to the front of his lips, a haematoma, and abrasions to his occipital region. He also noticed that he was heavily intoxicated." 46 Mr Criniti was admitted to Royal Prince Alfred Hospital where his condition deteriorated. He died on 30 May 2007. 47 The day after the incident, after speaking with his father, Mr Carroll caused a solicitor to contact Newtown police. He later attended Newtown police station. 48 The post mortem revealed a cut inside Mr Criniti's top lip, bruising around the nose, a fracture to the back of the skull, bleeding on the brain and a subdural haemorrhage. 49 The sentencing judge referred to the remarks of Street CJ in R v Hill [1983] 3 A Crim R 397, as to the protean character of the offence of manslaughter and the infinite variety of circumstances in which it might arise. It is appropriate to set out part of the Chief Justice's reasons in Hill (at 402) that appear to have been of particular relevance to her Honour: "The courts have however over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the talking of a life." 50 Her Honour then said: "This is very much a case where there is material justifying a degree of understanding and of sympathy towards the offender. At the time of these events he was 20 years old. He had successfully negotiated high school where in his final year he had been a prefect, and had received both the Principal's Award, and the Community Spirit Award. He had never been a problem to his parents and was, according to his mother, always helpful and good humoured. He was in his second year of a plumbing apprenticeship and was a highly valued employee. He was the captain of his rugby league team and was renowned for stepping in to calm situations on the field before they got out of hand. In his 17 year playing career he had never been sent to the sin bin or sent off. He had certainly never been in trouble with the criminal law. In the light of all the material before me about this young man what occurred on the night of 20 May 2007 is inexplicable. He is unable to explain it. What is clear is that the events of that night have touched him deeply and irrevocably. He is no longer the carefree young man he was. He lives each day conscious that he has taken a human life. He suspended his apprenticeship as he felt it was unfair to his employer to keep working as he was too distressed, anxious and depressed to do the job properly. He stopped playing football as he felt emotionally unable to face people. He has been diagnosed as suffering clinically significant levels of depression and anxiety. He is troubled by thoughts of worthlessness, hopelessness, and personal failure. He has almost entirely ceased using alcohol. And yet to keep himself busy he sought and obtained labouring work which requires less concentration than his apprenticeship, and he has sought to deal with his emotional distress by undergoing treatment with Professor Stephen Woods, clinical psychologist, as he feels that confronting his sense of guilty and remorse, though painful, would benefit him. I am satisfied that this young man genuinely understands the enormity of what he has done, and the suffering he has caused. I am also satisfied that he will live with what he has done for the rest of his life."

[3]

51 The sentencing judge accepted the submission put on behalf of Mr Carroll that the offence lay towards the bottom of the range of objective seriousness for offences of manslaughter because there was provocation, there was only one blow which was spontaneous and no weapon was involved. 52 It was common ground that none of the aggravating factors in the Crimes (Sentencing Procedure) Act 1999 (NSW) had application. 53 After referring to the terms of the Crimes (Sentencing Procedure) Act, s 3A, the sentencing judge said the following: "In the light of the material before me I do not consider that the sentence I impose needs to reflect any measure of personal deterrence or the protection of society, and whilst retribution and general deterrence remain of importance, that importance is reduced to an extent because of the youth of the offender and the need to foster his rehabilitation, although the mitigating effect of his youth is less in this case than it would be if he were under eighteen. I am satisfied from the material before me that the offender has excellent prospect of rehabilitation. Mr Bonnici, who appears for the offender, has submitted that I would find special circumstances, the Crown does not disagree. I propose to do so because of the offender's youth and his very real need for continued specialist psychological treatment, which Professor Stephen Woods believes is unavailable in a correctional centre. I have had regard to the Judicial Commission statistics for the offence of manslaughter where the proceedings are concluded in the District Court. I recognise that the statistics are a blunt tool as they tell me nothing about the circumstances of the offence or the offender, but they are of some value as a reference point. Those statistics indicate that 77% of people dealt with for this offence in the period October 2000 to September 2007 have imposed a sentence of full time imprisonment. I have also had regard to a number of cases provided to me by the parties for my assistance. There is no doubt that a sentence of imprisonment is required. In all the circumstances of this case I consider that a sentence of three years is the appropriate sentence. Mr Bonnici has submitted that it I were to consider that a sentence of three years or less was appropriate I would then consider whether that sentence could be served by way of periodic detention." 54 At this point, the sentencing judge considered the question of periodic detention raised by Mr Carroll's counsel. Her Honour referred to R v Dodd (1991) 57 A Crim R 349. 55 Her Honour made clear that she found the sentencing exercise a difficult one, but came to the view that periodic detention was appropriate, saying the following: "I have thought long and hard about this matter. As Justice Hulme pointed out in The Queen v Smith [2008] NSWSC 201: 'The rigours of incarceration for a person such as this offender are real, and the effect of incarceration does not cease immediately upon release.' But on the other hand, and this is one of the factors that makes sentencing in this area difficult - the deceased has forever been deprived of these opportunities. I have come to the conclusion that in the exceptional circumstances of this case a sentence of periodic detention would reflect the object seriousness of the offence, and would fulfil the manifold purposes of sentencing." The errors in the approach of the sentencing judge 56 We see two errors in the approach of the sentencing judge, being (a) her Honour's characterisation of the objective seriousness of the offence and (b) her Honour's approach to general deterrence. We are satisfied that, as a consequence of these errors, the sentence imposed in the District Court was manifestly inadequate in the well-recognised sense that it was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; Carroll v The Queen at 581 [8]-[9] (set out at [25] above).

[4]

The objective seriousness of the offence 57 As the High Court made clear at 584 [24] (see [26] above), it was (and remains) open to this Court to form a view different from the primary judge about where, on an objective scale of offending, Mr Carroll's conduct stood, provided the Court does not repeat the errors found to have been committed by this Court at the first hearing. 58 A complete assessment of the objective seriousness of the crime of manslaughter in this case could not be undertaken without some assessment of the comparative size and age of the offender and the victim. In this case, the offender was about 30 years younger than the victim and was a powerfully built young man who played as a front-row forward in competitive rugby league. The victim was a middle-aged man of comparatively slight build. Likewise, an appropriate assessment of the objective seriousness of the crime required some assessment of the method of attack utilised by the offender, namely a head butt. This form of physical attack is, in our view, a seriously aggravating feature in an offence of this type. 59 The character of a head butt that should be recognised is that it is a single blow by the head or forehead to the face (nose and mouth) of the victim delivered through the power of the neck and upper body. It is a blow of significant objective force and is inherently brutal. It was not a "bop on the head" as Mr Game put in argument (T24-25, 10 July 2009). The above is not to find facts, but to state what a head butt is, about which there could be no debate as flowing from the findings of the sentencing judge. The blow being delivered in these circumstances by a 20 year old man of strong physique to a 51 year old man of manifestly weaker stature, despite some provocation, leads to the conclusion that the offence cannot be viewed as lying towards the bottom of the range of objective seriousness for offences of manslaughter. There may have been only one blow and it may be characterised as spontaneous with some provocation, but it was a blow of a violent and brutal character which made the objective characterisation of the offence by the sentence judge insupportable.

[8]

The question of Judicial Commission statistics 63 There is one other aspect of the sentencing judge's remarks which calls for comment, though it is not operative to our reasons. Her Honour had regard to Judicial Commission statistics for the offence of manslaughter where the proceedings had been concluded in the District Court (see the extract from the remarks on sentence at [53] above). This issue was touched upon in oral submissions on the present appeal. It should be observed that, to the extent that sentencing statistics were of assistance, the appropriate course was to refer to sentencing statistics for manslaughter offences dealt with in the Supreme and District Courts. It is a fact that a significantly larger number of manslaughter cases were disposed of between 2001 and 2008 in the Supreme Court (208 cases) as opposed to the District Court (32 cases). Her Honour's attention was drawn to a number of single-blow manslaughter cases where sentence was imposed in the Supreme Court, as well as a number in the District Court. Of course, the same maximum penalty is available in both the Supreme Court and District Court when sentencing for manslaughter. This Court has observed more than once that particular care is required in using sentencing statistics for crimes of manslaughter: Salah v R [2009] NSWCCA 2 at [40]; Jones v R [2009] NSWCCA 169 at [41]. To the extent that sentencing statistics for manslaughter are taken into account, there is no warrant for a sentencing judge to confine attention to statistics for offences dealt with in the District Court for this class of offence. The appropriate sentence 64 We have concluded that a significant period of full-time imprisonment was required, at first instance, having regard to the objectively serious crime committed by Mr Carroll and the need properly to reflect general deterrence. This approach was necessary even allowing for Mr Carroll's strong subjective case. 65 It was therefore necessary for this Court to sentence Mr Carroll. It is unnecessary to repeat the personal circumstances of Mr Carroll recited by the sentencing judge and which are found at [50] above. Since being first sentenced, Mr Carroll has been buffeted by the operation of the legal system in a manner which must be recognised. He served imprisonment by way of periodic detention between 24 April 2008 and 19 September 2008. He was then incarcerated full-time for seven months between 19 September 2008 and 29 April 2009. His appeal to the High Court was successful. On 29 April 2009, he was given bail over the objection of the Crown. His appeal has been extended in its duration by the passing of retrospective legislation that attracted serious Constitutional challenge. The imposition of these matters upon him can be recognised not to be of his making (other than through the commission of the offence). 66 Affidavits read at the hearing of the Crown appeal have informed the Court of steps taken by him while the Crown appeal has been on foot. Mr Carroll's evidence as to his life since the night in question point in an understated but clear way to the devastating impact the offence and the sentences of imprisonment have had on him. He has advanced his life as best as he has been able by further education. He has one year to go as an apprentice before he becomes a plumber. His personal circumstances reveal the heavy psychological burden the legal process has had on him. We exclude from consideration that element of double jeopardy precluded by s 68A (see [33] and [34] above). 67 On 9 December 2009, we were of the view that, in the light of the combined periods of periodic and full-time imprisonment and the personal circumstances of Mr Carroll and the strain of the extended legal process over 2008 and 2009, the recognition of the objective seriousness of the offence and the necessary consideration of general deterrence would be satisfied by recognising Mr Carroll's imprisonment in the past and imposing a further 18 month suspended sentence. This reflected the unique set of circumstances surrounding Mr Carroll by December 2009. 68 For the reasons we have given the application for leave to appeal against the severity of the sentence must be refused. 69 These are our reasons for the making of the orders on 9 December 2009. 70 It has come to our attention that there was an error in order 3 made on 9 December 2009. By reason of the Crimes (Sentencing Procedure) Act 1999, s 12(3) Part 4 of the Act did not apply to require a provision for the commencement of the sentence. The bond commenced from the date of the orders. Any sentence of imprisonment would only commence if and when the suspension order is revoked, in which circumstance the Court would then make an order as to the date upon which the sentence commences.

Legislation Cited (6)

Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009(NSW)

Crimes Act 1900(NSW)

Crimes (Appeal and Review) Act 2001(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Criminal Appeal Act 1912(NSW)

Judiciary Act 1903(Cth)

Cases Cited (18)

Reported Decision: 267 ALR 57[2010] ALMD 5842[2010] ALMD 566477 NSWLR 45[2010] ALMD 5663[2010] ALMD 5564239 FLR 11200 A Crim R 284

CITATION: R v Carroll, Carroll v R [2010] NSWCCA 55

Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Hopley v R [2008] NSWCCA 105 Kable v Director of Public Prosecutions [1996] HCA 24; 189 CLR 51 International Finance Trust Co Limited v New South Wales Crime Commission [2009] HCA 49; 84 ALJR 31 Jones v R [2009] NSWCCA 169 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Nicholas v The Queen [1998] HCA 9; 193 CLR 173 CASES CITED : Peacock v DM Osborne & Co [1907] HCA 42; 4 CLR 1564 Polyukhovich v The Commonwealth [1991] HCA 32; 172 CLR 501 R v Carroll [2008] NSWCCA 218; 188 A Crim R 253 R v Dodd (1991) 57 A Crim R 349 R v Hill [1983] 3 A Crim R 397 R v JW [2010] NSWCCA 49 R v MD [2005] NSWCCA 342; 156 A Crim R 372 R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454 Salah v R [2009] NSWCCA 2

Application by Mr Carroll for leave to appeal against sentence refused. 3 These are our reasons for joining in the making of those orders. 4 On 20 May 2007, Mr Carroll, who at the time was 20 years old, head-butted a 51 year old man (Mr Luigi Criniti) outside a suburban hotel. Mr Criniti fell, hitting his head on the pavement. He died some days later of the head injury caused when he fell. Mr Carroll was charged with one count of manslaughter, that between 20 and 30 May 2007 he did unlawfully kill Mr Criniti contrary to the Crimes Act 1900 (NSW), s 18(1)(b). The offence carried a maximum penalty of 25 years imprisonment: Crimes Act 1900 (NSW), s 24. 5 On 1 November 2007, Mr Carroll pleaded guilty in the Downing Centre Local Court and was committed for sentence in the District Court. On 24 April 2008, he was sentenced in the District Court at Sydney by Flannery DCJ to imprisonment for a non-parole period of 18 months to commence 2 May 2008 and to expire on 1 November 2009, with a balance of term of 18 months to expire on 1 May 2011. It was ordered that the sentence be served by way of periodic detention. 6 The Crown appealed on the sole ground that the sentence was manifestly inadequate. 7 On 19 September 2008, the Crown appeal was allowed by the Court of Criminal Appeal (McClellan CJ at CL and Hislop J, Simpson J dissenting): R v Carroll [2008] NSWCCA 218; 188 A Crim R 253. The sentence imposed in the District Court was quashed; and, in lieu thereof, the Court sentenced Mr Carroll to full-time imprisonment for a non-parole period of 18 months to commence 2 May 2008 and to expire on 1 November 2009, with a balance of term of 18 months to expire on 1 May 2011. 8 The High Court granted special leave to appeal and, on 21 April 2009, allowed the appeal, set aside the orders of the Court of Criminal Appeal and remitted the Crown appeal to the Court of Criminal Appeal for re-hearing: Carroll v The Queen [2009] HCA 13; 83 ALJR 579. 9 On 29 April 2009, Mr Carroll was granted bail in the Supreme Court. 10 On 10 July 2009, the Crown appeal and an application for leave to appeal against sentence by Mr Carroll filed on 22 April 2009 were heard by a Court comprised of Allsop P, Kirby J and Johnson J. The Court reserved its decision and made, at the request of both sides, orders for the filing of further submissions by late August. These submissions were filed. 11 Prior to the delivery of judgment, Royal Assent was given to the bill which became the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (the "Double Jeopardy Act") which amended the Crimes (Appeal and Review) Act 2001 (the "Appeal and Review Act") by inserting s 68A in the following form: " s 68A Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again.

13 Further submissions were filed on the effect and validity of the Double Jeopardy Act, including submissions in support of a Constitutional challenge to s 68A. Notices under the Judiciary Act 1903 (Cth), s 78B were given to the State, Territory and Commonwealth Attorneys-General. 14 A further hearing took place on 9 December 2009, before a five judge bench (Spigelman CJ, Allsop P, Kirby J, Howie J and Johnson J) in order to deal with the Constitutional issues. The parties consented to the Chief Justice and Howie J being added to the bench without re-argument of the matters dealt with in July. 15 The argument on 9 December 2009 took place immediately following argument in R v JW before a differently constituted bench of five judges (Spigelman CJ, Allsop P, McClellan CJ at CL, Howie J and Johnson J) in which similar arguments were propounded as to s 68A and some of the grounds of its asserted invalidity. Judgment in R v JW has been delivered. The Court was unanimous in its views as to the proper construction of s 68A and its effect: R v JW [2010] NSWCCA 49. The proper construction of s 68A, its reach and scope and its constitutional validity 16 The narrow confines of s 68A were dealt with in R v JW at [49] and [141]. 17 Mr Game SC, who, with Ms Bashir, appeared for Mr Carroll, submitted that s 68A did not apply to this appeal because Mr Carroll's appeal had already been "finally determined" for the purposes of cl 16 of Part 8 of Schedule 1 of the Appeal and Review Act. 18 We reject this submission. Before the operation of the Double Jeopardy Act and the relevant amendments to the Appeal and Review Act, the High Court had set aside this Court's orders, thereby reviving the original orders of the sentencing judge. The "matter", that is the appeal under the Criminal Appeal Act 1912 (NSW), had been remitted to this Court for rehearing. That appeal was not finally determined. 19 Mr Game next submitted that the appeal in this Court was in federal jurisdiction. That was uncontroversial in so far as that circumstance was explained by the Constitutional debate that was raised: s 76(i) of the Constitution. Mr Game submitted that the same conclusion was to be reached because of the fact that the appeal was before this Court pursuant to remitter under the Judiciary Act, s 37, which is in the following terms: "[37] Form of judgment on appeal

[26] The appeal to this Court should be allowed, the orders of the Court of Criminal Appeal made on 19 September 2008 set aside, and the matter remitted to the Court of Criminal Appeal for rehearing by that Court." 27 It is undoubted that the scope of the authority of a court to which a matter is remitted under s 37 is confined by the terms of the remitter and that such court can make no order nor undertake any task inconsistent with the remitter order: Peacock v DM Osborne & Co [1907] HCA 42; 4 CLR 1564 at 1567-1568; R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454 at 472 [99]-[102]. 28 It is crucial, therefore, to understand what was remitted. The importance of this task arises at two points: first, whether compliance with s 68A is contrary to the order and so, s 37, that section being the source of power of the order; and, secondly, whether the Court has authority to permit the Crown to amend its notice of appeal to raise, as grounds of the appeal, the three arguments referred to in [9] of the High Court's reasons, as well as three further grounds. 29 The order for remitter was unrestricted in terms and was of "the matter", that is the controversy. The controversy was the complaint by the Crown about the sentence imposed by the sentencing judge. The whole of the orders of this Court had been the subject of the special leave application and the argument. All the orders of this Court were set aside. This is not a case where only one part of the intermediate court's orders or reasons was the subject of complaint: cf R v Weiss (No 2). Whilst the High Court examined the Crown's notice of appeal in [8] and [9] in a fashion reflecting its limited scope (an analysis similarly undertaken by the Chief Justice in R v JW) that did not confine the remitter. What was remitted was the whole matter, the controversy, for rehearing. Implicitly, that rehearing was to take place in accordance with the law then obtaining. In these terms, the task on remitter (that is the operation or execution of the task committed to this Court by s 37 and by the High Court's order under it) would not be detracted from or affected in any way by the Court applying s 68A. Thus, it is legitimate for the Court to apply s 68A. 30 Further, viewing the scope of the remitter in this way makes it legitimate for the Court to entertain the application to amend the notice of appeal. No unexpressed restriction should be read into the order to prevent the Crown applying to amend the notice of appeal in this Court's task of quelling the controversy by rehearing it.

Whether s 68A was an impermissible interference with judicial power 31 Mr Game initially put this submission based on Kable v Director of Public Prosecutions [1996] HCA 24; 189 CLR 51 and International Finance Trust Co Limited v New South Wales Crime Commission [2009] HCA 49; 84 ALJR 31. This submission identified as crucial the broad interpretation of double jeopardy originally asserted by the Crown. In the face of the relatively narrow interpretation on which the Attorney General and the Crown ultimately relied in argument (see R v JW at [49] and [141]), the argument based on Kable was barely pressed. This is understandable. So understood, s 68A does not affect the integrity of the Supreme Court nor does it place it in any position of dictation by the executive or Parliament. 32 However, Mr Game maintained the position that, even on this narrow construction, s 68A was invalid. He emphasised that the Court was exercising federal jurisdiction, because of the existence within the controversy of an issue engaging s 76(i) of the Constitution and because the Court was exercising a power under and through the Judiciary Act, s 37. That being the case, he submitted that s 68A impermissibly directed the Court how to exercise its judicial power in a manner which deprived it of the necessary quality of impartiality: Nicholas v The Queen [1998] HCA 9; 193 CLR 173 esp at 208-209; approved in Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at 359 [56]. 33 We reject this submission. On the narrow construction submitted, s 68A does not direct the Court to act in a way that is repugnant to the judicial process. It removes one aspect for consideration in the judicial and sentencing process on a Crown appeal. Section 68A does not compromise the essential character of the Court, nor does it require the Court to proceed in a manner that compromises equality before the law, impartiality or substantive fairness of process, they being essential attributes of judicial power, State or federal. Nor does s 68A direct the Court as to the judgment or order it might make. Rather, it removes one aspect from judicial consideration being double jeopardy expressed in R v JW at [141(ii)] as follows: "… the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject." 34 This conclusion was based on the confined submission of the Attorney General (R v JW at [49]) that the discount discussed in the Parliamentary speeches introducing the Bill was: "The discount was intended to reflect the distress and anxiety of facing sentence again irrespective of the circumstances of the particular offender." 35 It was submitted that the operation of s 68A (limited as it is to Crown appeals) would lead to inconsistent outcomes where there was also a sentence appeal by the offender. We do not see that as likely to occur. Crown appeals and resentencing within them will be founded on error leading to inadequacy of sentence and as such the intersection with an offender's appeal is unlikely. Section 6(3) of the Criminal Appeal Act 1912 applies to an offender's sentence appeal, but not to a Crown appeal. In any event, such is not sufficient to invalidate s 68A as the product of an exercise of Parliamentary law making. 36 Ultimately, the submission was that the Parliament could not legislate to require the Court to ignore one human consideration from the judicial approach to sentencing on a Crown appeal because to do so directed the Court to act partially and unfairly. We do not accept that. It can be accepted that our rejection of the argument involves a normative assessment of the effect of s 68A narrowly construed as it is. The argument might be of significantly more force and weight if the Crown's first construction of the content of s 68A had been maintained. 37 Finally, Mr Game submitted that the retrospective operation of s 68A meant that it was invalid to that extent. He relied on what was said by Deane J (in the minority) in Polyukhovich v The Commonwealth [1991] HCA 32; 172 CLR 501 at 608. We reject this submission. A majority in Polyukhovich concluded that the retrospective creation of substantive criminal law in question did not offend Ch III of the Constitution. To a degree, Mr Game's argument on retrospectivity drew upon other strands of his argument which we have already addressed: repugnancy with the judicial process and inconsistency with s 37. 38 In our view, s 68A is not invalid.

[2005] HCA 25

[2006] VSCA 161