Armstrong v Regina

[2015] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	ARMSTRONG v REGINA [2015] NSWCCA 273
Hearing dates:	20 August 2015
Date of orders:	28 October 2015
Decision date:	28 October 2015
Before:	Bathurst CJ at [1]; Price J at [62]; Beech-Jones J at [66]
Decision:	1 Grant the applicant leave to appeal. 2 Allow the appeal. 3 Set aside the sentence imposed on the applicant and, in lieu thereof, make the following orders: (a)  The applicant be sentenced to a term of imprisonment of 12 years and 3 months, commencing on 20 March 2012, with a non-parole period of 9 years and 2 months. (b)  The earliest date on which the applicant will be eligible for parole is 19 May 2021.
Catchwords:	CRIMINAL LAW – appeal - sentencing – considerations - ceiling principle – whether sentencing judge erred in failing to take into account a relevant consideration, namely, the sentences imposed on the applicant in earlier trials
Cases Cited:	Armstrong v R [2013] NSWCCA 137 Mill v The Queen [1988] HCA 70; 166 CLR 59 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Paul Darcey Armstrong [2013] NSWCCA 137 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R H McL v The Queen [2000] HCA 46; 203 CLR 452 R v Armstrong [2010] NSWSC 800 R v Bedford (1985) 5 NSWLR 711 R v Gilmore (1979) 1 A Crim R 416 R v Mitchell [2002] NSWCCA 380 R v MM [2002] NSWCCA 431; 135 A Crim R 216 Tarrant v R [2007] NSWCCA 124; 171 A Crim R 425
Category:	Principal judgment
Parties:	Paul Darcey Armstrong (Applicant) Crown (Respondent)
Representation:	Counsel: B Rigg (Applicant) T Smith (Respondent) Solicitors: Legal Aid of NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2009/63851
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2014] NSWSC 700 Date of Decision: 30 May 2014 Before: Adamson J File Number(s): 2009/63851

Judgment

1. BATHURST CJ: Paul Darcey Armstrong (the applicant) pleaded guilty to the manslaughter of Felipe Flores (the deceased) on 2 September 1991. The basis for liability for manslaughter, as distinct from murder, was provocation.

2. On 30 May 2014, the sentencing judge sentenced the applicant to a term of imprisonment of 13 years and 3 months, commencing on 21 October 2012, with a non-parole period of 9 years and 11 months. The earliest date upon which the applicant was eligible for release on parole was to be 20 September 2022, whilst the balance of the term was to expire on 20 January 2026.

Factual background

3. The summary below is taken from the statement of agreed facts tendered at the sentencing hearing, supplemented by the findings of the sentencing judge in R v Armstrong [2014] NSWSC 700 (Sentencing Judgment). Neither party disputed these findings.

4. The deceased was a homosexual male who had the HIV virus. He was known to frequent gay nightclubs and establishments in the Darlinghurst area.

5. Shortly after midnight on 2 September 1991, the deceased went to the Exchange Hotel on Oxford Street, Darlinghurst. He was observed to be intoxicated. While there, he met the applicant, a male, who was taller than 185 cm and of a solid muscular build. They agreed to have sex.

6. After leaving the Exchange Hotel, the applicant drove the deceased to a secluded spot at Lincoln Crescent, Woolloomooloo. There, oral sex took place, during which the deceased’s trousers and underpants were lowered. During or after oral sex, the deceased told the applicant that he was HIV positive. At the time the applicant had a fear of contracting HIV. As a result of what was said and due to concern as to the possibility of contracting HIV, the applicant lost control. The applicant violently assaulted the deceased and inflicted fatal injuries on him.

7. A post mortem examination revealed that the deceased had suffered severe internal injuries. These included three fractured ribs on the right side and two on the left side and a large laceration extending between both atria of the heart. There was a large laceration to the liver, which almost split the liver in half, bruising to the spleen, extensive bruising to the scrotum and a laceration in the groin area. There was also an impression made on the deceased’s face, believed to be a shoe print.

8. The sentencing judge noted that the Crown accepted that the applicant’s loss of control was induced by the deceased telling him that he had the HIV virus. She also noted that the Crown accepted that, taking into account the community concern in 1991 about contracting HIV, this could have induced an ordinary person in the position of the applicant to have so far lost control as to have formed an intent to inflict grievous bodily harm.

9. After the assault, the applicant dragged the deceased, still undressed, to a dark place in the area. The sentencing judge found that he did this so that the deceased would not be discovered in sufficient time for the assault to be associated with the applicant. She found that by the time that the applicant had dragged the deceased, the applicant had regained control. She found that he dragged the deceased “in order to reduce the prospects of his involvement being revealed by his proximity to the scene, delay the discovery of Mr Flores and to remove any chance that his life could be saved”: Sentencing Judgment at [109].

The events leading up to the plea of guilty to manslaughter

10. The applicant was first interviewed in connection with the killing on 4 December 2008, following which he was arrested. He stood trial and was convicted of murder. On 12 August 2010, he was sentenced by Buddin J to a total term of 17 years imprisonment with a non-parole period of 11 years and 6 months, commencing 4 December 2008. The total term was to expire on 3 December 2025 and the applicant was to be eligible for release on parole on 3 June 2020: R v Armstrong [2010] NSWSC 800.

11. The applicant also stood trial and was convicted in the District Court of two unrelated counts of sexual intercourse without consent. He was sentenced for this offence by Murrell DCJ (as her Honour then was) on 13 August 2010, the day following his sentence for murder. There is some disparity between the sentence as recorded in her Honour’s remarks on sentence and that recorded on JusticeLink. In respect of Count 2, the remarks by her Honour recorded a sentence for a fixed term of 2 years and 6 months, commencing on 20 July 2018 and expiring on 19 January 2021. In respect of Count 1, her Honour’s remarks on sentence recorded a head sentence of 5 years 10 months and 15 days, commencing on 20 January 2019 and expiring on 3 June 2024, with a non-parole period of 3 years 10 months and 15 days, expiring on 3 June 2022. The overall sentence was thus for a term of 5 years 10 months and 15 days, commencing on 20 July 2018, the applicant being eligible for parole on 3 June 2022 and the overall term expiring on 3 June 2024.

12. By contrast, the entry in JusticeLink records a sentence on Count 2 of a fixed term of imprisonment of 2 years and 6 months, commencing on 7 June 2018 and expiring on 6 December 2020. In respect of Count 1, the entry records a head sentence of 4 years 10 months and 17 days, commencing on 6 June 2019 and expiring on 22 April 2024, with a non-parole period of 2 years 10 months and 17 days, expiring on 22 April 2022. The overall sentence was thus 5 years 10 months and 17 days, commencing on 7 June 2018 and expiring on 22 April 2024, the applicant being eligible for parole on 22 April 2022.

13. Whichever version of the sentence imposed by Murrell DCJ is correct, it can be seen that the sentence on Count 1 was to be served entirely concurrently with the non-parole period fixed by Buddin J for the sentence for murder, while that for Count 2, partly concurrently with that non-parole period and wholly concurrently with the head sentence. The end result was that, as a result of the sentences imposed by each of Buddin J and Murrell DCJ, the applicant was sentenced to a total term of 17 years expiring on 3 December 2025 and was first eligible for parole on either 22 April 2022 or 3 June 2022, depending on whether the sentence recorded in the remarks on sentence or that contained in JusticeLink was actually imposed by Murrell DCJ.

14. The applicant appealed against his conviction for murder. His appeal was upheld and a new trial ordered. In consequence, the Court of Criminal Appeal revised the sentences imposed for the sexual assault offences: Paul Darcey Armstrong [2013] NSWCCA 137. The fixed term of 2 years and 6 months imprisonment for Count 2 was stated to commence on 4 December 2008 and expire on 3 June 2011. The sentence of 4 years 10 months and 17 days imprisonment imposed for Count 1 was stated to commence on 4 December 2009, with a non-parole period of 2 years 10 months and 17 days, expiring on 20 October 2012, the balance of term expiring on 20 October 2014. Thus, when the sentencing judge came to impose the sentence, she noted that the applicant was sentenced in respect of the sexual offences to an overall term of imprisonment commencing on 4 December 2008, expiring on 20 October 2014, with a non-parole period expiring on 20 October 2012.

15. I have recorded the sentence imposed by the sentencing judge in par [2] above. The effect of her Honour’s orders was to accumulate the whole of the sentence for manslaughter on the non-parole period for the sexual offences. The net result was that (assuming that the sentence of Murrell DCJ as recorded on JusticeLink was correct), while when the applicant stood convicted of both murder and the sexual offences, he was eligible for parole on 22 April 2022, he is now eligible for parole on 20 September 2022. Further, while his sentence for murder would have expired on 3 December 2025, his sentence for manslaughter now expires on 20 January 2026.

The remarks on sentence

16. Neither the factual findings made by the sentencing judge, her Honour’s assessment of the objective seriousness of the offence, nor her assessment of the subjective circumstances of the applicant, were challenged on this application. It is thus necessary to do no more than set out her conclusions in summary form.

17. Her Honour set out the circumstances in which the offence occurred in the manner I have described above. Her Honour noted that the principal disputed fact at the sentencing hearing was whether, as the Crown contended, the applicant appreciated that he had killed the deceased at the time, or shortly after, his death, or, as the applicant contended, he only appreciated this in December 2008, when he was questioned by the police.

18. The sentencing judge described the applicant as an “unsatisfactory witness” whose evidence she could not accept unless corroborated: Sentencing Judgment at [83]-[84]. She rejected his evidence that he did not know that the deceased had died in 1991, but rather found that the applicant had concluded that he had got away with killing the deceased, whose death could be attributed to so-called “gay bashings” at the time. The sentencing judge did not accept that the deceased was capable of struggling with the applicant, or that he caused the applicant any injury. The sentencing judge pointed to the fact that the maximum penalty for the offence was 25 years and that there was no standard non-parole period. Her Honour noted that the applicant made no inquiry of the deceased as to whether he was HIV positive prior to having sex with him. She rejected his evidence that there was a convention as a result of which the applicant assumed that, if the deceased was infected with the virus, he would have informed the applicant as a matter of courtesy.

19. Her Honour stated that she regarded the manslaughter as objectively very serious, being “a brutal and savage attack by a large, strong man against a relatively diminutive weaker man”: Sentencing Judgment at [111]. She stated that she did not regard the provocation as particularly great and she described the applicant’s conduct after the crime as both “callous and selfish”: Sentencing Judgment at [113].

20. Considering the appropriate sentence, the sentencing judge noted that the crime was a historic crime, having been committed in 1991. She concluded, however, that sentencing practice for the offence of manslaughter had not moved adversely to the applicant since that time.

21. The sentencing judge noted the sentences imposed by Buddin J and Murrell DCJ, as varied by the Court of Criminal Appeal. She concluded that it was not appropriate to backdate the sentence for manslaughter to a date earlier than the expiration of the non-parole period for the sexual offences, as there was entirely separate criminality between the manslaughter and the sexual offences. She concluded that the principle of totality did not require any part of the sentence to be served concurrently with the non-parole period for the sexual offences.

22. Her Honour found that the applicant did not demonstrate any remorse for his crime. In relation to his subjective circumstances, she noted that he was diagnosed as HIV positive in 1995 and that he was on anti-retroviral medication. She noted that he had been assaulted in gaol, as a result of which he had reduced vision in his left eye. She noted that he had lost contact with his family since being in gaol.

23. The sentencing judge referred to a psychologist’s report of a Ms Amber Duffy, in which, she stated, the applicant was found to have avoidant, schizoid, masochistic (self-defeating), dependent and anti-social traits. She noted that the report said that he suffered substantial anxiety, but had been reluctant to seek counselling whilst in custody.

24. The sentencing judge noted that the applicant’s prior convictions did not entitle him to any leniency. She also rejected the proposition that he had good prospects of rehabilitation.

25. So far as a discount for the plea of guilty was concerned, her Honour noted that a four week trial had been avoided. However, she pointed out that the applicant was aware of the advantage of a plea to manslaughter when charged with murder. She noted that, in these circumstances, he pleaded at the last possible opportunity. In those circumstances, she was only prepared to allow a discount of 5%.

26. The sentencing judge declined to find special circumstances arising out of the fact that the applicant had been in prison since 4 December 2008. She repeated her view that the sentence should stand apart from and not be affected by the sentences imposed for the sexual offences. In that context, her Honour made the following remarks:

“[143]   I note that it is implicit in the variation by the Court of Criminal Appeal of the sentence for the sex offences that Buddin J was satisfied that there were special circumstances. It was not submitted that I was bound by that finding. Indeed, as I indicated to the parties, I have not considered Buddin J's remarks on sentence lest I be influenced by the factual substratum of the trial which was necessarily different from the Agreed Facts and evidence before me. I do not regard the sentence imposed by Buddin J, which was set aside when the conviction was quashed, as having any bearing on the exercise of my sentencing discretion.”

The grounds of appeal

27. The applicant relied on the following ground of appeal:

“1.   Her Honour failed to take into account a relevant consideration; namely one or more of the following:

a)   The sentence imposed upon the applicant by Buddin J (R v Armstrong [2010] NSWSC 800),

b)   The sentence imposed upon the applicant by Murrell DCJ on 13 August 2010 (as set out in, and varied by, this Court in Armstrong v R [2013] NSWCCA 137), and/or

c)   The total effective sentence and total effective non-parole period faced by the applicant, as a result of the sentences imposed upon by Buddin J and Murrell DCJ, prior to the quashing of his murder conviction by this Court.”

The parties’ submissions

28. The applicant relied on what he described as the basic principle that ordinarily the sentences imposed in a first trial should be regarded as the upper limit of the sentence to be imposed following an appeal and second trial, otherwise the offender will be seen to have been worse off as a result of having brought a successful appeal against conviction. This is described as the ‘ceiling’ principle.

29. The applicant submitted that exceptions to the principle were rare and needed to be clearly articulated in the reasons of the second sentencing judge. He submitted that exceptions most commonly arose if the view was formed that the earlier sentence was manifestly inadequate or where there was materially different information before the second judge as compared to the first. The applicant submitted that in the present case, there was no suggestion of any error in the approach taken to sentencing by Buddin J or Murrell DCJ.

30. There was some debate between the parties as to the extent that the principle was or should have been drawn to the attention of the primary judge and the extent that her Honour took it into account. The applicant acknowledged that neither the principle, nor the cases which supported it, were articulated in the submissions before the sentencing judge. However, he pointed to the context in which that occurred, in particular, that it was self-evident that a conviction of manslaughter should lead to a lesser sentence than that for murder arising out of the same circumstances. Further, the applicant noted that it was in fact submitted before the sentencing judge that the applicant should be entitled to retain the benefit of some concurrency and not lose that benefit as a consequence of running his appeal and retrial. The applicant also noted the response of the sentencing judge that the applicant had received “an enormous benefit in that he had the opportunity to plead guilty to manslaughter”. The applicant also pointed to the fact that material supplied to the sentencing judge demonstrated that sentences for manslaughter, generally speaking, were manifestly less than that imposed in the present case. Senior counsel for the applicant submitted that, in those circumstances, it was unsurprising that the principle was not raised and that it was acknowledged that there may need to be some lessening of concurrency.

31. The Crown pointed to the fact that the sentences imposed by Buddin J and Murrell DCJ were before the sentencing judge, that neither party had sought to place before her Honour the remarks on sentence of either of them and that neither party sought to have her Honour read the remarks on sentence of Buddin J or the decision of the Court of Criminal Appeal on appeal, although she indicated that she would do so if requested. Senior counsel for the Crown, however, fairly acknowledged that as the sentencing judge was aware that the sentence for manslaughter would be significantly less than that imposed for murder, it was understandable why the ceiling principle was not the focus of the sentencing proceedings.

32. Senior Counsel for the applicant submitted that the obvious fact which required application of the basic principle was that the sentencing judge was not concerned with the offence of murder. She submitted that the application of the principle was further supported by the principle of equal justice.

33. Senior counsel for the applicant submitted that, in considering the principle, it needed to be recognised that there was more involved in a sentence than the head sentence. She submitted that all components of the sentence imposed by Buddin J needed to be taken into account, including the total sentence, the minimum period to be spent in custody and the extent to which service of the sentence was ameliorated by being made concurrent with other sentences. She submitted that unless the sentencing judge came to the view that the sentence she was to impose for manslaughter would be manifestly inadequate if made concurrent, in the order of about 2 years, the previous concurrency ought to be preserved.

28. Senior counsel for the applicant submitted that in sentencing, one of the factors required to be taken into account, in an ameliorative way, was the existence of the sentencing regime prior to the appeal. She drew an analogy with a situation of parity, submitting that the same principle of equal justice which required parity to be taken into account in the case of co-offenders should be applied in the present case.

29. Senior counsel for the applicant also drew on the principle of totality, pointing to the fact that the total criminality “was less in a meaningful way than the total criminality the applicant was to be sentenced for prior to the appeal”.

30. Senior counsel for the applicant submitted, referring to the paragraph in the remarks on sentence to which I have referred to in par [26] above, that it was clear that the sentencing judge did not regard the sentence imposed by Buddin J as having any bearing on her sentencing discretion. She submitted that although the statement was made when dealing with the issue of special circumstances, it was a clear statement of broad application, especially given that her Honour did not clearly state otherwise why she did not take the principle into account.

31. The Crown submitted that the remarks of the sentencing judge, to which I have referred in par [26] above, were confined to the consideration of special circumstances and were not a general statement that no regard would be paid to the prior sentence. The Crown pointed to the fact that the sentence imposed was significantly less than that imposed by Buddin J for murder and did not of itself offend the ‘ceiling’ principle.

32. The Crown pointed out that the sentencing judge gave consideration to the question of concurrency submitting that that demonstrated that she was cognisant of the degree of overlap between the two sentences. It was pointed out that the sentencing judge specifically addressed the reason why she was taking a different approach to totality than that taken by Murrell DCJ.

33. The Crown submitted that it was questionable, in the current circumstances, where the applicant was convicted of an entirely separate offence following the appeal, whether the ceiling principle would apply. The Crown submitted that the sentencing judge was obliged to give effect to her own assessment of totality and that she gave specific reasons for the course that she took.

34. In support of the proposition that the ceiling principle did not apply in the particular circumstances of the present case, counsel for the Crown submitted that Murrell DCJ was sentencing “on the back of a lengthy murder sentence”, in contrast to the position as it emerged before the sentencing judge.

Consideration

41. What has been described as the ‘ceiling’ principle in cases of conviction following a retrial, consequent upon a successful appeal, is well established. It was stated by Street CJ in R v Gilmore (1979) 1 A Crim R 416 (Gilmore) in the following terms (at 419-420):

“It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial. The application of this ordinary principle will, of course, necessarily yield in relation to the non-parole period if there is some significant subsequent circumstance to be taken into account. For example, an escape from custody pending the new trial or the committing of other offences whilst on bail, resulting in either case in the imposition of a sentence prior to the new trial itself, would have a direct significance upon the non-parole period to be specified if the new trial results in a conviction. But, so far as concerns the head sentence, that passed on the first trial should ordinarily not be exceeded if the new trial results in conviction again.

…

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.”

42. Subsequently, in R v Bedford (1985) 5 NSWLR 711 (Bedford), Street CJ seemed to modify the principle to some extent. His Honour described it as a prima facie approach and, if a judge considers that a longer sentence is appropriate, he or she is obliged to give effect to his or her views. It was emphasised, however, that if this course was to be adopted, the judge should give a specific indication of the reasons as to why it was considered appropriate: Bedford at 714.

43. The principle was considered by the High Court in R H McL v The Queen [2000] HCA 46; 203 CLR 452 (McL). Gleeson CJ, Gaudron and Callinan JJ made the following remarks concerning the principle:

“[23]   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 R v Gilmore in which Street CJ 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.” [internal citations omitted]

McHugh, Gummow and Hayne JJ described the application of the principle as follows:

“[72]   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. 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.”

44. As the applicant pointed out, in the present case, there was no suggestion that the sentences imposed by Buddin J or Murrell DCJ, including the structure of the sentence imposed by Murrell DCJ, were manifestly inadequate or for that matter, infected by error.

45. In Tarrant v R [2007] NSWCCA 124; 171 A Crim R 425 (Tarrant), after reviewing the authorities, the Court stated (at [30]) that there was force in the proposition that Street CJ in Bedford watered down his statement of principle in Gilmore. The Court observed, however, that the observations of the High Court in McL appeared to have “restored Gilmore to prominence as an expression of the rationale of this approach to sentencing”: Tarrant at [30]. The Court emphasised that a “judge at a second trial need not perpetuate a sentence which is manifestly inadequate” or may “pass a heavier sentence if he or she makes [different] findings of fact … from those made by the judge at the first trial”: Tarrant at [31].

46. The application of the principle is relatively straightforward when the second sentence is for the same offence as that for which the offender was originally sentenced. When that is not the case, it is more complex. Thus, in Bedford, the offender had been convicted of offences against two victims. In respect of the first victim, he was sentenced to an aggregate of 6½ years, in respect of the second, to a cumulative 3½ years, making a total of 10 years with a non-parole period of 5 years being specified. Following successful appeals against conviction, he was retried on the first offence and sentenced to 6½ years, with a non-parole period of 3 years. On appeal, it was argued that the offender should be entitled to the benefit of 7½ months served by him which was exclusively referable to the sentence imposed at the first trial, in accordance with the principles in Gilmore. The argument was rejected, Street CJ stating (at 714) that some consideration must have been given at the first trial to the principle of totality in fixing the individual sentences. In those circumstances, he concluded that the applicant was no worse off.

47. A similar situation arose in R v MM [2002] NSWCCA 431; 135 A Crim R 216. At the first trial, the applicant was convicted and sentenced in respect of 14 offences. Following a successful appeal, he was retried and convicted of 11 of the same charged 14 offences and acquitted of three. The same overall sentence was imposed. In rejecting an appeal on the ground that this amounted to an effective increase in sentence, without good reason being demonstrated, the Court explained (at [16]) that it was important for the sentencing judge to have particular regard to totality and the overall requirement that the sentence reflect the objective seriousness of the offences. The Court also emphasised (at [30]) the independent sentencing discretion of the second sentencing judge.

48. None of the cases to which I have referred above dealt with a situation where the offender was convicted of a lesser offence following a successful appeal against conviction, nor where, following his or her first conviction, another judge had imposed sentences for different offences. The former matter was considered in R v Mitchell [2002] NSWCCA 380 (Mitchell). Following a trial, the applicant was convicted of 3 offences, kidnapping, sexual assault and common assault. For the kidnapping, he was sentenced to 6½ years imprisonment with a non-parole period of 4½ years. For the sexual and common assault offences, he was sentenced to concurrent fixed terms of 3 years and 6 months, respectively.

49. Following an appeal, the convictions were quashed and a retrial was ordered. Thereafter, the applicant agreed to plead guilty to all of the charges other than the charge of kidnapping. The sentencing judge imposed the penalty originally given for the kidnapping offence for the sexual assault offence. The Court held that the sentencing judge erred in adopting this approach. The Court indicated that “the applicant would have been entitled to expect that had he gone to trial for the offences for which he had originally been tried …and had he been convicted of those offences, he would have received no more than the sentence imposed initially upon him”: Mitchell at [22]. However, the Court found that as a result of the sentence imposed by the second sentencing judge, he in effect received the same sentence imposed on him in the first trial, less a discount for a plea of guilty. However, the Court varied the sentence for the sexual assault offence to a period of 4 years and 6 months, with a non-parole period of 3 years and 3 months, a somewhat greater sentence than that originally given for that offence.

50. The circumstances of the present case are different to any of the cases to which I have referred. First, it must be remembered that the sentence imposed for manslaughter of 13 years and 3 months (approximately 13 years and 11 months prior to the 5% discount for the plea), was less than the offence imposed for murder, as was the non-parole period (see par [10] above).

51. Further, the sexual offences were entirely unrelated offences. In the instant case, apart from the ceiling principle, the only basis on which it could be concluded the sentences were to be served wholly or partly concurrently, would be by application of the principle of totality, to ensure that the sentence was just and appropriate, reflecting the overall criminality and avoiding a crushing sentence: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 304, 308; Pearce v The Queen [1998] HCA 57; 194 CLR 610.

52. In the present case, it was not suggested that, apart from the failure to apply the ceiling principle, the sentencing judge erred in considering questions of totality or the extent to which the sentence should be served concurrently. However, the sentence for manslaughter was heavy and the failure to apply the principle, in my opinion, cannot be explained by the fact that because a lesser overall sentence for manslaughter was imposed, there was no need for any concurrence with the second offence.

53. Further and importantly, contrary to what was stated in Bedford, the sentencing judge gave no reasons for failing to consider the principle. Indeed, having regard to the passage from her judgment set out in par [26] above, she appeared to regard the earlier sentences as irrelevant. In my respectful submission, in these circumstances, her Honour fell into error.

54. Thus, it is necessary to resentence the applicant. Although the applicant at one point in his submissions suggested that the error could simply be rectified by re-establishing the earlier concurrency, in my opinion, that is not permitted by the authorities. Rather, the appellate court is required to exercise its independent discretion in resentencing the applicant: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42].

55. However, the resentencing exercise in this case is simplified by the fact that the circumstance of the offence, as recorded by the sentencing judge, her analysis of the objective seriousness of the offence and her consideration of the subjective circumstances of the applicant, have not been disputed. I have summarised these matters above, taking into account what her Honour said in respect of each of them.

56. Although the Court was provided with some statistics concerning sentences for manslaughter, I do not consider them to be of much assistance having regard to the wide variety of circumstances in which this crime can be committed. As her Honour said, the maximum sentence is 25 years and this offence was objectively serious. I agree with the sentencing judge that it is not possible to conclude that the applicant has good prospects of rehabilitation.

57. In relation to the discount for the plea, I would give a somewhat higher discount than that given by the sentencing judge. The plea did avoid a four week trial and it was by no means clear that the Crown would have accepted the plea had it been offered prior to the original conviction being overturned. I would regard 10% as an appropriate discount.

58. Taking these matters into account, as well as the subjective circumstances referred to by the sentencing judge, I would impose a total sentence of 12 years and 3 months. Like her Honour, I am unable to find special circumstances, so I would impose a non-parole period of 9 years and 2 months.

59. If the sentence was accumulated on the non-parole period for the sexual offences, the earliest date that the applicant would be eligible to be released would be 19 December 2021. This does not seem to me to give adequate weight to the ceiling principle, particularly having regard to the fact that the plea of guilty was to a lesser offence than that for which the applicant was originally convicted. There should be a degree of concurrence.

60. I would sentence the applicant to a term of imprisonment of 12 years 3 months, commencing on 20 March 2012, with a non-parole period of 9 years and 2 months. The earliest date on which the applicant will be eligible to be released on parole is 19 May 2021 and the sentence will expire on 19 June 2024.

61. In the result, I would make the following orders:

1. Grant the applicant leave to appeal.

2. Allow the appeal.

3. Set aside the sentence imposed on the applicant and, in lieu thereof, make the following orders:

1. The applicant be sentenced to a term of imprisonment of 12 years and 3 months, commencing on 20 March 2012, with a non-parole period of 9 years and 2 months.

2. The earliest date on which the applicant will be eligible for parole is 19 May 2021.

62. PRICE J: I have had the benefit of reading the judgment of the Chief Justice and the note of agreement from Beech-Jones J.

63. It is regrettable that neither the Crown nor counsel for the applicant drew the ceiling principle, nor the cases that supported it, to the attention of the sentencing judge. Whilst in submissions to this Court, Senior Counsel submitted that it was unsurprising that the ceiling principle was not raised particularly as it was “self-evident” that a conviction for manslaughter should lead to a lesser sentence than that for murder, the Chief Justice’s judgment demonstrates that the application of the ceiling principle in the circumstances of her Honour’s sentencing task was not without difficulty.

64. The assistance provided by the Crown, and counsel for the applicant, fell short of the help that her Honour could otherwise have reasonably expected. Neither counsel who appeared on the appeal appeared at the trial

65. I agree with the Chief Justice and the orders proposed.

66. BEECH-JONES J: I agree with the Chief Justice and the orders he proposes. In particular I agree that the “ceiling principle” described by the Chief Justice applies to the circumstance of a person being sentenced for manslaughter when they have previously been convicted and sentenced for murder in respect of the death of the same person. I also agree that its proper application requires a consideration of not just the overall length of a sentence but all the components of the sentence including its commencement date relative to other sentences so as to avoid a person effectively being punished for mounting a successful appeal.

**********

Decision last updated: 28 October 2015