R v Petersen [1998] QCA 65

"... must approach the case as one coming before him de novo. It would be wrong for him to regard himself as in any way bound by what had occurred at the previous trial, or limited in the exercise of what after all is a discretionary power, the determination of what is a proper sentence. Of course, it is proper for him to have regard to the opinion of the trial Judge at the first trial; but the facts which emerged before the courts at the two trials may have varied in some significant respect. Almost certainly they will have varied to some extent. Even if they have not varied to any significant extent, the trial Judge at the second trial must do what he himself thinks proper in all the circumstances; one of those circumstances being that he has the advantage of knowing what another Judge thought of the same or similar facts, that is to say the facts which emerged at the first trial. But in the end, it is he, and he alone, who is responsible for deciding what is a proper sentence."

In Williams, the Full Court of Western Australia considered the question. At p. 283, Burt CJ said:-

"In my opinion the trial Judge following upon a conviction on a re-trial must, when he comes to sentence, exercise his own judgment and his own discretion. He will do that having regard to the offence committed; to the circumstances of its commission; to the antecedents of the convicted person and to all other relevant facts which are personal to him. In addition he will have regard to the sentence imposed upon the first conviction and he will be conscious of the principle, so-called `that unless there is some strong ground there should not be a disparity passed (sic) between the sentence imposed upon persons convicted on the second occasion after a re-trial compared with those that were imposed upon them on the first occasion.': See Leary v. R. Court of Criminal Appeal, 18 August 1975, per Jackson CJ."

Burt CJ then cited, with apparent approval, the following statement of Street CJ in R v. Gilmore (1979) 1 A. Crim. R 416 at p. 419:-

"The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill-founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.

In the second place, the passing of a heavier sentence on a new trial could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But, at the same time, it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature."

"But if having had regard to the first sentence and to the policy considerations to which I have referred, as the trial Judge in this case did, and to all other facts relevant to sentence, the sentencing Judge is of the opinion that the sentence passed following upon the first conviction was inadequate or inappropriate, then he must act upon that opinion because it is, at that point, his judgment which is decisive; and it is a judgment which he must make and act upon. It would, I think, be wrong for him to say:-`In my judgment the first sentence is altogether inadequate or inappropriate but nevertheless it was a sentence imposed and therefore I will impose it again.'"

In Bedford, the Court of Criminal Appeal endorsed the approach taken in Gilmore, saying that the general proposition there discussed established a "prima facie" approach. The court, however, considered that there might well be circumstances justifying a departure from that approach, including a conclusion on the part of the second sentencing Judge that the prisoner had been treated in an unduly lenient way on the first occasion. In Chen, the Court of Criminal Appeal adopted the reasoning in Bedford and in Williams.

We consider that where an offender is to be re-sentenced following a successful appeal and re-trial, the second sentencing Judge should start with the proposition that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. If minded to depart from that approach, he or she should consider the powerful policy considerations outlined above. Only if the second sentencing Judge concludes that the earlier sentence was outside the appropriate range, or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based, should he or she impose a heavier sentence.

In the present case, it is conceded by counsel on behalf of the Crown that the sentence imposed on the second occasion was, in any event, beyond the appropriate range and therefore, quite apart from the question of principle to which we have referred, the court must intervene. It is common ground that the sentence originally imposed was within such a range. A perusal of the cases to which we have been referred indicates that a sentence of 12 years is entirely consistent with them. We would grant leave to appeal, set aside the sentence and substitute a sentence of 12 years' imprisonment. There is another matter which must be considered. It seems that the first sentence was passed without regard to the fact that the applicant had offered to plead guilty before the commencement of his trial. It is not clear whether this matter was brought to the attention of the sentencing Judge on that occasion. It seems likely that it was not. We consider that there should be a recommendation for early parole. We recommend that the applicant be considered for parole after serving a period of 4½ years.