Tarrant v Regina

The Application 11 To understand the argument on the application, it is necessary to examine the reasoning of Hulme J in arriving at the disparate sentences which he passed. The case as it was presented before his Honour differed in two respects from the retrial. Firstly, Mr Smit had not conceded responsibility for the death of the deceased, as he had before Latham J. Secondly, and more importantly, Hulme J had left the case to the jury as one of joint criminal enterprise and also as one of aiding and abetting, that is, one offender being present, intentionally encouraging or assisting a principal offender. 12 Like Latham J, his Honour was unable to determine for the purpose of sentence which of the offenders had inflicted the fatal wound or wounds. However, in the light of the admissions to police by Mr Smit and to the acquaintance by Mrs Smit, he concluded that each of them had "some active involvement going appreciably beyond mere presence and a minimum level of encouragement or assistance". As to the applicant, on the other hand, he noted that the Crown prosecutor had disclaimed any suggestion that her palm print on the bat showed that she was the principal offender, and he found "nothing else to show that her role was more than at the lowest level of participation". 13 Latham J, of course, was aware of the sentences passed by Hulme J and his Honour's reasons for them. As we have said, her Honour found herself unable to distinguish the role of any of the offenders from that of the others. In examining Hulme J's finding about the applicant's level of participation, she noted that in that earlier trial liability as an aider and abettor had been left to the jury. She considered that it was, therefore, "at least theoretically available" to Hulme J to find that the applicant was not a principal offender but, rather, that she was "present and intentionally encouraging or assisting someone else". However, at the retrial liability as an aider and abettor had not been left to the jury. The Crown case had been presented only as one of joint criminal enterprise. 14 Her Honour found that all three offenders had made out more favourable subjective cases than they had before Hulme J. It is for that reason that she passed lesser sentences upon Mr and Mrs Smit than his Honour had done. She passed the same sentence upon the applicant as she had upon the Smits, although that was greater than the sentence passed by Hulme J, because she could not distinguish the applicant's role from theirs. She concluded that she was not constrained to sentence the applicant to a term identical to that imposed by Hulme J after considering a line of authority commencing with R v Gilmore (1979) 1 A Crim R 416. It is necessary to examine those decisions. 15 In Gilmore, Street CJ enunciated the principle that where an offender is convicted of an offence a second time after a retrial, he or she should ordinarily not receive a longer sentence than that passed at the first trial. (Different considerations might apply to the non-parole period, but that is not relevant for present purposes.) The Chief Justice noted that the power to order a new trial is statutory and was unknown to the common law, and referred to a provision of the English Criminal Appeal Act in which the principle is given statutory force. His Honour continued: The policy consideration underlying the specification of the upper limit on 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. 16 The Court revisted the issue in R v Bedford (1986) 5 NSWLR 711. In that case the appellant had been found guilty at a first trial of a number of sexual offences committed against two victims. He had been sentenced to terms of imprisonment in respect of the first victim, upon which sentences in respect of the second victim had been accumulated. Those convictions were set aside by this Court, and he was put on trial again for the offences relating to the first victim. 17 He was again found guilty of those charges and was sentenced to the same aggregate term of imprisonment that had been passed in respect of them in the first trial. However, it was argued that the judge at the second trial should have taken into account a period of custody following the first trial which was exclusively referable to the sentencing order made at the conclusion of that trial. For that proposition the principle in Gilmore was relied upon. That argument was rejected. Street CJ, delivering the leading judgment, noted (at 714) that at the first trial the aggregate sentence for the offences against the first victim must have been moderated to some degree because the sentences in relation to the second victim were to be accumulated upon them, in recognition of the principle of totality. 18 The Chief Justice emphasised that the principle in Gilmore is that a person should not "ordinarily" receive a heavier sentence at a retrial than that passed at the first trial. His Honour continued (at 713-4): The word "ordinarily" must be given full room to operate. It might perhaps have been preferable to have expressed this view as a prima facie approach rather than elevating it to a principle. Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view. 19 The Chief Justice went on to observe that there could be "a multiplicity of factors persuading the second judge that he should depart from the prima facie approach". For example, it might appear that the offender was dealt with unduly leniently at the first trial, or the second trial might disclose criminality of a higher order or a less favourable subjective case. 20 The High Court had occasion to consider the matter in R H McL v The Queen (2000) 203 CLR 452. The case is not strictly on point, as it was concerned with the re-adjustment of sentences on a number of counts in an indictment after the convictions on some other counts had been quashed, and the observations of the members of the High Court are strictly obiter. In a joint judgment, Gleeson CJ, Gaudron and Callinan JJ cited Gilmore with approval and added at [23]: 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. 21 McHugh, Gummow and Hayne JJ, also in a joint judgment, said at [72]: 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. 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. 22 Kirby J examined the issue at some length, referring to New South Wales and interstate authority, at [133] ff. His Honour noted at [137] that Gilmore was endorsed by the Court of Criminal Appeal of Western Australia in Williams v The Queen (No 2) [1982] WAR 281. He referred at [139] to the decision of the Victorian Court of Criminal Appeal in, in which that Court saw Bedford as something of a retreat from the view expressed in Gilmore. Nevertheless, their Honours had agreed with the manner in which the West Australian court had used the Gilmore reasoning in Williams. 23 Kirby J concluded that the rule, although not rigid, is one of restraint, having "its foundation… in the elementary attributes of a manifestly just system of criminal appeals that Street CJ explained in Gilmore": [140]. His Honour went on to adopt a passage from the judgment of the Court of Appeal of Queensland in R v Petersen [1999] 2 Qd R 85 at 87: … 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. 24 R v Merritt (No 2) [2000] NSWCCA 365 was a Crown appeal against a sentence passed after a retrial. Following the first trial, the offender had appealed against conviction and the Crown had cross-appealed against sentence. This Court allowed the appeal against conviction and ordered a retrial, but expressed the view that the sentence which had been passed was unduly lenient. 25 The offender was found guilty at the retrial and, in the light of the decisions in Gilmore and Bedford, the judge presiding over that trial felt constrained to pass the same sentence as had been passed at the first trial. The Crown appeal against that sentence was successful. Delivering the leading judgment, O'Keefe J held that the trial judge was not so constrained because the sentence was manifestly inadequate. (The matter had been argued before the High Court handed down its decision in McL.) 26 McL was considered in R v MM (2000) 135 A Crim R 216, in which the authorities were reviewed in the leading judgment of Levine J. In that case, the appellant at a retrial had been sentenced in respect of a series of sexual offences to the same aggregate sentence he had received at the first trial, even though he had been acquitted of some of the charges of which he had been convicted at the first trial. The Court rejected an argument, based upon the Gilmore line of authority, that there should have been some reduction of the aggregate sentence, noting the measure of concurrence in the structure of the sentences passed at the first trial. The issue was somewhat akin to that dealt with in Bedford and, albeit in a different context, in McL. 27 Following his review of the authorities, Levine J said at [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. 28 In R v Hannes [2002] NSWSC 1182, James J sentenced an offender who had been found guilty of a series of offences at a retrial. The first trial had been conducted in the District Court before Backhouse DCJ . Her Honour had imposed sentences which were wholly concurrent, together with fines. James J passed the same sentences but directed that some be served cumulatively upon the others (although he did not impose fines in respect of those offences). His Honour concluded that to permit the sentences for those offences to be served concurrently with the other sentences would have the effect of rendering the punishment for them manifestly inadequate: [174]. 29 His Honour reviewed the principles relating to sentencing after a re-trial, with reference to the major authorities, at [65] ff. At [70] he also expressed the view that in Bedford "Street CJ retreated from what he had said in Gilmore". At [84] he expressed his conclusion about the approach he should take in the sentencing exercise before him as follows: Because of the division of judicial opinion and because the remarks by justices of the High Court in McL were, strictly speaking, dicta, it is not entirely clear what principles I should apply in the re-sentencing of Mr Hannes. I consider that it would clearly be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that a sentence imposed by her was so manifestly inadequate that it would be set aside on a Crown appeal on the ground of its manifest inadequacy. I also consider that it would be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that there are new, significantly different facts before me which were not before Judge Backhouse. I also consider that it would be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that Judge Backhouse made a significant specific error in sentencing Mr Hannes. It is not clear whether there are any other circumstances in which I would be justified in imposing a heavier sentence than Judge Backhouse did. If I consider that a sentence imposed by Judge Backhouse is within the permissible range of sentences and, hence, is not manifestly inadequate, it is at least doubtful whether I should impose any heavier sentence, merely because, if I had been sentencing Mr Hannes for the first time, I would have imposed a somewhat heavier sentence. 30 There is force in the view that what Street CJ had to say in Bedford represents a watering down of his statement of principle, founded upon considerations of public policy, in Gilmore. The observations of the members of the High Court in McL appear to have restored Gilmore to prominence as an expression of the rationale of this approach to sentencing. That said, the result in Bedford was unremarkable. The sentence passed at the second trial was nominally the same as that passed at the first but its practical effect was somewhat different. However, for the reasons which Street CJ identified, the Court found that the appellant had suffered no real disadvantage. The same is true of MM, and the passage from the judgment of Levine J quoted above must be understood in its context. 31 What does emerge clearly from the authorities is that a judge at a second trial need not perpetuate a sentence which is manifestly inadequate. That was the approach of this Court in Merritt (No 2) and of James J in Hannes. In the present case, that is not suggested of the sentence which Hulme J passed upon the applicant at the first trial. However, what also emerges is that the judge at a second trial might pass a heavier sentence if he or she makes findings of fact bearing upon the offender's criminality significantly different from those made by the judge at the first trial. It is this which lies at the heart of the application. 32 Counsel for the applicant, Mr Dhanji, submitted that it was not open to her Honour to find that the applicant had inflicted some injury upon the deceased. Allied to that was an argument that the principle of 'restraint' in re-sentence at a second trial, to adopt the expression of Kirby J in McL, extends to the drawing of inferences from primary facts. Accordingly, it was said, an offender standing for sentence after a re-trial should ordinarily be no worse off if the same primary facts are established at the second trial, so that the judge at the second trial should be slow to draw inferences from those primary facts more adverse than those drawn by the judge at the first trial. Mr Dhanji further argued that, in any event, her Honour's finding about the applicant's role was not of sufficient significance to warrant a departure from the sentence passed by Hulme J. 33 In supplementary submissions, we were supplied with extracts from her Honour's summing-up and a part of her written directions to the jury in which she dealt with joint criminal enterprise. Those directions, written and oral, contain the conventional direction that, if the agreed crime is committed by one or other of the parties to a joint criminal enterprise, then all parties are guilty of that crime regardless of the part they played in its commission. Mr Dhanji pointed out that at no stage did her Honour direct the jury that it was a requirement for participation in the joint criminal enterprise charged that the particular accused had personally inflicted injury upon the deceased. Participation as an aider and abettor, as Hulme J found of the applicant, would have been sufficient. 34 We have referred earlier to her Honour's direction that the jury could not use evidence of the applicant's palm print on the cricket bat in proof of her guilt unless they were satisfied beyond reasonable doubt that it was deposited on the bat at the time the deceased was attacked. Again, as Mr Dhanji pointed out, her Honour did not direct the jury that they had to be satisfied that the palm print was deposited upon the bat as a result of the applicant herself assaulting the deceased. The direction must be understood in the context of the conduct of the trial, at which the central issue was whether the applicant was present at the time of the attack. 35 As we have said, the applicant told police that she was not present when the deceased was attacked. The Crown prosecutor at the trial had submitted to the jury that a number of her answers during that interview were lies demonstrating a consciousness of guilt. There was also evidence that she had asked an acquaintance (the same man to whom Mrs Smit was alleged to have made admissions) to say that she had been living in his premises, rather than those of the deceased, at the relevant time. Her Honour gave the jury the conventional direction about statements said to convey a consciousness of guilt but added that those statements, standing alone, could not establish the applicant's guilt. It was in that context, Mr Dhanji pointed out, that she emphasised the importance of a finding that the palm print was placed on the bat at the relevant time. 36 The approach of this Court to the findings of fact of a sentencing judge is well established. As Greg James J put it in R v Olenik [2002] NSWCCA 90 at [36], "On an application for leave to appeal against sentence, this court is bound by the findings of fact made by the trial judge, unless it is not open to the trial judge on the evidence before him to make those findings." His Honour had earlier examined the issue, with reference to authority, in R v Khouzame [2000] NSWCCA 505 at [30] ff. 37 As recited above, the deceased had sustained a number of stab wounds to various parts of his body and three bloodstained knives were found in the lounge room, where the attack had taken place. Her Honour had occasion to examine the evidence against the applicant in the course of an interlocutory judgment during the trial. She noted that the applicant's bloodied palm print on the bat was "consistent with the print being made by the transference of blood from the hand to the bat". She concluded that the whole of the evidence permitted the jury to infer that more than one person assaulted the deceased "by the use of knives and implements", that the applicant's hand came into contact with the deceased's blood at the time he was assaulted with knives, that those assaults took place in the lounge room where the knives were found, and that the applicant handled or touched the bat at or shortly after the time that the deceased was stabbed and before it was wrapped with his body in the kitchen. 38 Viewing the evidence in that way, as her Honour was clearly entitled to do, it cannot be said that it was not open to her to find that all three offenders, including the applicant, inflicted some injury upon the deceased. This was an important departure from the finding of Hulme J at the first trial, but it is apparent from her Honour's remarks that she did so only after careful consideration. 39 We cannot accept Mr Dhanji's submission that the principle of restraint governing sentence at a second trial extends to the drawing of inferences from primary facts. As observed above, the authorities acknowledge that a second trial judge might make findings of fact different from, and more culpable than, those made at the first trial. The reference in the cases to findings of fact must encompass the drawing of inferences. No doubt, a second trial judge would not lightly depart from a finding at the first trial which was favourable to the offender. Nevertheless, it is incumbent upon the second trial judge to make his or her own findings of fact. If those findings, conscientiously made, lead to an assessment of the offender's culpability greater than that of the first trial judge, a sentence heavier than that passed at the first trial is warranted. 40 Thus it was in the present case. Her Honour's finding about the applicant's involvement was significantly different from that made by Hulme J and called for a heavier sentence. Moreover, it left her Honour with no proper basis upon which to deal with the applicant more leniently than the other two offenders. 41 Mr Dhanji's final argument was that the applicant had been denied procedural fairness in the sentencing process. This was said to arise from the fact that the Crown prosecutor at the trial (who did not appear in this Court) did not ask her Honour to make findings of fact different from those of Hulme J and conceded that none of the offenders should receive a sentence longer than that passed at the first trial. Mr Dhanji also did not appear at the trial. However, from the transcript of the proceedings on sentence he mounted an argument that, in the light of the Crown concession, senior counsel then appearing for the applicant had not addressed the possibility of a heavier sentence and her Honour had not foreshadowed that that might be the outcome. He relied upon Fairbairn v Regina (2006) 165 A Crim R 434, in which a similar issue was addressed in the light of relevant authority: see the judgments of Basten JA at [2] and Bell J at [36-37]. 42 Of course, her Honour was not bound by the Crown prosecutor's approach. Mr Dhanji did not suggest that she was. On the question of procedural fairness, however, it appears clearly enough from the transcript that her Honour did raise this issue. In the course of submissions for the applicant, her Honour said that she wished to raise a matter "generally for the benefit of all counsel …". She went on to say: The problem I'm having is that I just don't have any evidence beyond the circumstantial evidence the Crown relied upon to indicate to me on any satisfactory evidentiary basis how I am going to distinguish the roles of these three offenders. That's the problem I'm having. There are circumstances in relation to each of them which point to their participation in the offence but beyond that I don't know whether one was more active than another, I just don't have a basis for saying that. 43 When senior counsel for Mr Smit rose to address, he referred to her Honour's "at least tentative view" about the roles of the three offenders, saying that "it seems impossible to determine exactly what happened". Her Honour referred to the principles relating to re-sentencing at a retrial, observing that the lower sentence which Hulme J had passed upon the applicant "imposes its own difficulty as it were". Senior counsel said that it was "cause for some momentum actually", whereupon her Honour said: I know what you are going to say Mr Boulton, what it means is that the head sentences of your client and his former wife should come down in order to - but the difficulty with that is that that head sentence arose out of a specific sentence (sic) by Hulme J that Ms Tarrant played a lesser role.