26 The appellant's argument is, in effect, that in a case in which concurrent sentences have been imposed in the original proceedings and where there is an acquittal for some offences in the subsequent proceedings, there should ordinarily be a reduction in the total effective sentence. In the appellate environment, this would occur through recourse to the court's powers under s7(1). If this is something that should ordinarily occur, it was not recognised as such by the High Court. It is implicit in the above extracts from the two joint judgments that their Honours contemplated the usual course where there are concurrent sentences would be for the appellate court not to resort to its power to alter the remaining sentences.
27 In the present case, as has been mentioned, it was conceded before Coolahan DCJ that the sentences imposed by Job DCJ were appropriate. The only issue was whether the sentences should be altered because of the acquittal in respect of three counts and also because of what was asserted to be the delay arising from the subsequent successful appeal against conviction in the first trial. Further, for the applicant, it was contended that an additional fundamental consideration in the circumstances with which the Court presently is concerned, is that of "fairness" to the applicant.
28 For the Crown the following six relevant considerations were advanced as required to be considered: first, the extent of the difference in the number of offences (here the applicant was convicted of what was described as a major proportion of those originally charged). Secondly, the extent of the difference in the objective gravity of the offences (here, briefly stated, the objective gravity of the found offences in the second trial were such as independently to warrant sentences to the same effect as those imposed as a result of the first trial). Thirdly, there is to be taken into account the manner in which the original sentences were ordered to be served (concurrently), and the manner in which the original sentencing judge accommodated the principle of totality (here, conformably with Pearce, each offence was separately sentenced and the separate sentences, to achieve totality, were ordered to be served concurrently). Fifthly, (following Merritt) where the proper exercise of the discretion of the second sentencing judge leads to a conclusion that the sentences imposed at the first trial were "inadequate", the second sentencing judge is not bound to impose any greater effective sentence. Sixthly, in all cases, the primary consideration is that the sentences must properly reflect the objective gravity of the individual offences and the total effective sentence must pay heed (as was contended to have occurred in this case) to the principle of totality.
29 It was contended for the Crown that this was a case in which the totality principle was applied by the specification of individual sentences each one appropriate to its individual offence with an order that they be served concurrently, and thus it is not necessary for the sentences to be reduced. For example, if a total sentence of 8 years was appropriate in respect of count five, it remains so upon conviction in respect of that count at the second trial. In other words, there has been no effective increase in the applicant's sentence.
30 The authorities confirm the discretion which reposes in the judge sentencing after the retrial to make an independent assessment as to the appropriate punishment. Here, it must be demonstrated why a totally effective sentence of 8 years with a non-parole period of 6 years was beyond the scope of the sentencing discretion exercised by Coolahan DCJ.
31 The individual sentences of 8 years with non-parole periods of 6 years for counts five and twelve to fourteen were within the scope of the second sentencing judge's discretion. Counts six and nine had initially attracted concurrent fixed terms of 2 years and 3 years respectively; acquittal on those counts do not justify a reduction in the sentence appropriate for counts five and twelve-fourteen. As the Crown submitted, rhetorically, why should acquittal on count eleven, which was initially determined to warrant a sentence of 8 years with a non-parole period of 6 years, bring about any reduction in the sentence imposed upon the applicant for counts five and twelve-fourteen which were determined to be worthy of the same level of punishment?
32 The series of decisions referred to above provides for the application, in a principled way, of a convention in sentencing. It may be to some extent described as cognate with "double jeopardy". Certainly, in my view, it cannot be said that those cases establish a "rule". Irrespective of whether the view could be formed that the first set of sentences was manifestly inadequate or manifestly excessive, it has to be recognised that the second sentencing judge is not "resentencing" but exercising an independent sentencing discretion with respect to the offences of which the particular offender has been convicted. Of course it will be the case that if sentence "x" is imposed in relation to fourteen offences and the same sentence "x" is imposed in relation to eleven of those fourteen offences, it can be perceived that the sentence has been "increased". The explanation for the "increase" or the "good reason" therefor, should be identifiable by the exposed application of principle to that (second) independent sentencing exercise.
33 In the instant application the Crown's rhetorical question referred to above must be answered, in my view, to the effect that there was no reason for any reduction. An examination of Judge Coolahan's reasons, taking into account "fairness", taking into account no suggestion of "inadequacy" in relation to Judge Job's sentences, discloses the principled application of the convention to which I have referred. Looking at the circumstances of the convictions at the second trial, the quantum of each sentence in relation to each found offence is appropriate and the principle of totality correctly reflected in this instance by concurrence. The criminality involved in the found offences is such as to warrant the sentences imposed. That conclusion is available irrespective of an available fine discrimination of the kind advanced by the applicant to the effect "less findings of guilt therefore less criminality". This last proposition may well apply in another case; indeed, as oral submissions reflected, the examples of the variables can be endless.
34 Thus I am persuaded that no error in principle in the peculiar situation attending his Honour Judge Coolahan's sentencing exercise has been exposed. In any event, I add, having regard to the criminality which fell to be punished upon the findings of guilt in the second trial, it was persistent and enduring for an extensive period and involved the extreme mistreatment of a young child. No other sentence would otherwise have been warranted pursuant to s6(3) of the Criminal Appeal Act.
35 I would propose that leave to appeal be granted but that the appeal against sentence be dismissed.
36 HIDDEN J: I agree with Levine J.
37 HOWIE J: I have had the benefit of reading the judgment of Levine J in draft. I agree with his Honour's proposed orders and generally with his reasons for them. I merely wish to add some brief observations of my own in addition to what his Honour has written.
38 This is yet another endeavour to turn sentencing into a mathematical exercise governed by a rigidity of approach which is the very antithesis of the exercise of discretion, albeit a discretion exercised in accordance with established principles and with due consideration to relevant guidelines or relevant statistical information as to the exercise of a similar discretion in similar situations.
39 In the present case the sole argument relied upon for asserting that the sentencing judge's discretion miscarried was that less criminality must result in less punishment. In the arithmetical way that the argument was advanced before this Court it was asserted that conviction of eleven offences in the second trial had to result in a lesser sentence than was considered to be appropriate for conviction of fourteen offences at the first trial. But as attractive as that argument might be to a mathematician, it is an over-simplification of the proper approach to sentencing for multiple offences generally, and the sentencing exercise undertaken by both Judge Job and Judge Coolahan in particular. It attributes to the exercise of the sentencing discretion an exactitude that is as unrealistic as it is unwarranted.
40 The approach also seeks to compare the exercise of the discretion by the two sentencing judges rather than to focus upon the discretion exercised by Judge Coolahan. The question for this Court is concerned with the correctness of the sentence imposed by Judge Coolahan for the offences for which the applicant was convicted before him. His Honour was to impose a sentence appropriate to that criminality. The fact that his Honour came to the conclusion that the sentence imposed by Judge Job was also appropriate to reflect the criminality before him does not on its face suggest that the sentence was erroneous. As I understand the argument before this Court, it was not suggested that the sentence imposed was manifestly excessive if the sentence imposed by Judge Job were disregarded.
41 How then can it be that his Honour's sentence miscarried? Reliance is placed upon the convention that Levine J has reviewed in relation to sentencing after a re-trial. I doubt that the prima facie approach referred to in R v Bedford (1986) 5 NSWLR 711 applies in this case. I find a substantial degree of artificiality in considering the sentence imposed by Judge Coolahan to be an increase in the sentence imposed by Judge Job. Judge Coolahan imposed the sentence he believed was appropriate and was not prepared to reduce the sentence simply in recognition that Judge Job imposed the same sentence for more offences.
42 Further, I do not understand how the policy considerations behind the general approach to sentencing after a re-trial that are referred to in R v Gilmore (1979) 1 A Crim R 416 apply to the situation before Judge Coolahan. How could a convicted person be deterred from seeking to appeal because the same sentence was imposed after re-trial albeit for fewer offences? How could there be a perception that the sentence had an element of retribution for the applicant having succeeded on appeal? In any event, as Levine J has shown, there was good reason for Judge Coolahan to impose a heavier sentence than that imposed by Judge Job, if, contrary to my view, that is how the sentence should be regarded and accepting that the convention after re-trial did apply.
43 I have indicated that in my view the appropriate task is to consider the exercise of the discretion by Judge Coolahan and not to compare and contrast the sentence imposed by his Honour with that imposed by Judge Job in order to determine whether any error occurred. But even if the sentence imposed by Judge Coolahan is considered from the perspective of the sentence imposed by Judge Job, no error is apparent. Judge Job, in accordance with Pearce v The Queen (1998) 194 CLR 610, determined the appropriate sentence to be imposed for each offence and then dealt with the question of totality of criminality by making all sentences concurrent. In other words, he determined that the appropriate sentence for the most serious offence was adequate to address the total criminality arising from what was a continued course of criminal conduct. Why then should those sentences be disturbed, if they remain appropriate to reflect the criminality of each offence, simply because there were now less offences within the course of criminal conduct before the court? To reduce the sentence for any one offence in order to affect the total sentence imposed would risk infringing the principle in Pearce.
44 In a case such as the present, where there is a course of criminal conduct between the offender and the victim over a lengthy period of time and involving multiple offences of the same or similar nature arising from the same motivation (in this case sexual gratification), the totality of criminality resulting from that course of conduct is particularly unsusceptible to precise calculation. Generally speaking, the extent of the criminality will be unlikely to vary significantly with the addition or reduction in particular incidents relied upon as revealing the course of conduct. Certainly, it was well open to Judge Coolahan to determine that the absence of the three offences from the criminality that was before Judge Job made no appreciable difference to the extent of the criminality disclosed by the course of conduct in which the applicant had been engaged for nearly six years as revealed by the offences before him.
45 Ultimately counsel for the applicant, who argued the matter with considerable skill and conviction, relied upon the general notion of fairness to support his submission that this Court should intervene. As I understand the argument, it was submitted that the applicant would have a justifiable sense of grievance if he were to receive the same sentence as imposed by Judge Job notwithstanding that he had been convicted of less offences. But, if it is accepted that the sentence imposed is appropriate to the criminality before Judge Coolahan and if any lesser sentence is not warranted, why should this Court intervene? How can the applicant have a sense of grievance to which this Court should have regard? The result is explained by the principle of totality and the manner in which each sentencing judge attempted to impose an overall sentence in accordance with that principle. If the applicant has a grievance, it is not one that this Court should in the exercise of its discretion seek to redress.