On appeal from the Supreme Court of New South Wales
Representation
S J Odgers SC with P D Lange for the appellant (instructed by Murphy's Lawyers)
L A Babb SC with N L Williams for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Betts v The Queen
Criminal law – Sentencing – Where appellant appealed against severity of sentences – Where additional material produced by appellant admitted on "usual basis" that it may be taken into account if appellate court came to re-sentence – Where additional material contained evidence inconsistent with appellant's case at sentence hearing – Where appellate court found error, engaged in re‑sentencing appellant and refused to take into account additional material – Whether miscarriage of justice occasioned.
Words and phrases – "fresh evidence", "miscarriage of justice", "power of remittal", "re-sentencing discretion", "supplemental powers", "usual basis".
FRENCH CJ, KIEFEL, BELL, GAGELER AND GORDON JJ. This appeal is concerned with the exercise of the appellate court's sentencing discretion under the common form criminal appeal provisions. Is the appellate court's assessment of whether some other sentence is warranted in law made on the evidence that was before the sentencing court, or does the exercise of the sentencing discretion afresh[1] require a hearing de novo at which new evidence of the circumstances of the offence, and the causes of the offending, is to be received?
As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry.
Procedural history
The appellant pleaded guilty in the District Court of New South Wales to wounding the complainant with intent to murder[2] and detaining the complainant without her consent with intent to obtain a psychological advantage and, immediately before the detaining, occasioning actual bodily harm to her[3]. On 18 May 2012,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Betts v The Queen [2016] HCA 25
Case
[2016] HCA 25
Decision Date
CaseChat Overview and Summary
Betts appealed to the High Court of Australia against the severity of sentences imposed upon him. The appeal concerned the admission of additional material by the appellant, which contained evidence inconsistent with his case at the original sentencing hearing. This material was admitted on the "usual basis" that it could be considered by the appellate court if it decided to re-sentence the appellant.
The High Court was required to determine whether a miscarriage of justice had been occasioned when the appellate court, having found error and engaged in re-sentencing the appellant, refused to take into account the additional material. This involved considering the nature of "fresh evidence" and the scope of an appellate court's powers in re-sentencing, including its discretion and supplemental powers.
The Court reasoned that the "usual basis" for admitting additional material on appeal did not confer an unfettered right to have that material considered in all circumstances. The appellate court retained a discretion to determine whether such material should be taken into account, particularly where it contradicted the appellant's own evidence at the original sentencing. The High Court held that the appellate court had not erred in its approach, as the admission of the material on the "usual basis" was conditional and did not mandate its consideration in the re-sentencing exercise, especially given its contradictory nature.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
FRENCH CJ, KIEFEL, BELL, GAGELER AND GORDON JJ
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, KIEFEL, BELL, GAGELER AND GORDON JJ