DWG v The State of Western Australia
[2023] WASCA 133
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DWG -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 133
CORAM: BUSS P
MITCHELL JA
HALL JA
HEARD: 20 JULY 2023
DELIVERED : 7 SEPTEMBER 2023
FILE NO/S: CACR 101 of 2022
BETWEEN: DWG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 2666 of 2019
Catchwords:
Criminal law - Appeal against sentence - Where appellant had originally been convicted of 24 offences and sentenced to a total effective sentence of 10 years 8 months' imprisonment - Where original convictions had been quashed on appeal and a new trial ordered - Where appellant pleaded guilty to 16 out of 24 counts on third day of his third trial in satisfaction of the indictment - Where a 2% discount was applied to individual sentences for very late pleas of guilty - Where appellant sentenced to a total effective sentence of 10 years' imprisonment at the third trial - Whether sentence imposed at the third trial breached the principle of restraint - Whether the principle of restraint required a proportionate reduction in the total effective sentence which had been imposed at the first trial in order to reflect the reduced overall criminality involved in the offences of which the appellant was convicted at his third trial - Whether the reduction in the total effective sentence of 8 months was proportionate to the reduction in the overall criminality involved in the offences of which the appellant was convicted at the third trial
Legislation:
Criminal Code (WA) s 320(4), s 321(2), s 321(4), s 324
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S D Freitag SC and S Nigam |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Armstrong v The Queen [2015] NSWCCA 273
Barker v The Queen (No 2) [1996] FCA 809; (1996) 70 FCR 1
Chia v The Queen [2023] NSWCCA 63
DWG v The State of Western Australia [2022] WASCA 45
McL v The Queen [2000] HCA 46; (2000) 203 CLR 452
Murdoch (A Pseudonym) v The Queen [2013] VSCA 272; (2013) 40 VR 451
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pollock v The State of Western Australia [2011] WASCA 133
R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34
R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56
R v Bedford (1986) 5 NSWLR 711
R v Chen [1993] 2 VR 139
R v Garrett (1978) 18 SASR 308
R v Gilmore (1979) 1 A Crim R 416
R v J, SM [2015] SASCFC 185
R v MM [2002] NSWCCA 431; (2002) 135 A Crim R 216
R v Petersen [1998] QCA 65; [1999] 2 Qd R 85
R v Williams [No 2] [1982] WAR 281
R v Youkana [2005] NSWCCA 231
Roffey v The State of Western Australia [2007] WASCA 246
Warne v The Queen [2020] SASCFC 124
XMB v The State of Western Australia [2023] WASCA 4
BUSS P:
This is an appeal against sentence.
In May 2021, the appellant was convicted, after a trial before Stevenson DCJ and a jury, of 24 counts involving child sex offences against three complainants. Stevenson DCJ imposed a total effective sentence of 10 years 8 months' imprisonment for the 24 counts.
The appellant's appeal against conviction was allowed, the judgments of conviction were set aside and a new trial on the 24 counts was ordered. See DWG v The State of Western Australia.[1]
[1] DWG v The State of Western Australia [2022] WASCA 45.
On 23 May 2022, the new trial began. However, that trial was aborted on 24 May 2022 because of an editing error in the pre‑recorded evidence of one of the complainants.
On 25 May 2022, another new trial began. On the third day of that trial, the appellant entered pleas of guilty on 16 of the 24 counts. The State accepted those pleas in satisfaction of all of the counts in the indictment.
In September 2022, Barbagallo DCJ, who was the trial judge at the third trial, imposed a total effective sentence of 10 years' imprisonment for the 16 counts.
The appellant relies upon one ground of appeal. The ground alleges that the total effective sentence of 10 years' imprisonment breached 'the principle of restraint' applicable to an offender who is to be sentenced following his or her conviction after a retrial.
I agree with Mitchell and Hall JJA that leave to appeal should be granted and the appeal should be dismissed. My reasons are as follows.
The background facts and circumstances, Barbagallo DCJ's sentencing remarks and the submissions of the parties in the appeal
The background facts and circumstances, Barbagallo DCJ's sentencing remarks and the submissions of the parties in the appeal are summarised in the reasons of Mitchell and Hall JJA. I will not repeat their Honours' summary except to the extent necessary to explain my reasons.
The nature and content of the so‑called 'principle of restraint' or 'ceiling principle'
In R v Garrett,[2] a question was reserved for determination by the Full Court of the Supreme Court of South Australia as to whether, upon conviction following a retrial, the judge at the retrial was 'in any way or in any circumstances constrained in his imposition of sentence by the sentence imposed by the Judge on the original conviction'. The offender was convicted of the same offence at the original trial and at the retrial. It appears that the judge at the retrial was considering the imposition of a longer sentence than was imposed by the judge at the original trial.
[2] R v Garrett (1978) 18 SASR 308.
Hogarth ACJ and White AJ answered the question 'No'. Their Honours said (313):
The Judge upon the re‑trial is in no way constrained in his imposition of a sentence by the sentence imposed by the Judge on the original conviction; but it is quite proper for him to bear in mind what the Judge did at the original conviction, when determining what is proper for him to do.
Wells J gave this answer to the question (316):
The Judge upon the re‑trial retains, unimpaired, the judicial discretion to impose a just sentence having regard to the circumstances of the case. In determining what is just, he may have regard to, without in any way being bound by, the sentence imposed by the trial Judge after the first trial.
In R v Gilmore,[3] the offender was convicted of the same offences at the original trial and at the retrial. The judge at the retrial imposed a longer sentence than the judge at the original trial. Street CJ (Lusher J agreeing) said (419):
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. … 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.
[3] R v Gilmore (1979) 1 A Crim R 416.
Street CJ explained that there were two aspects to the policy considerations underlying the upper limit on the sentence. First, a person whose conviction at an original trial was set aside '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' (419 ‑ 420). His Honour elaborated that it was in the public interest that defects in criminal trials should be challenged and exposed on appeal and that it would be wrong if a person who had been wrongly convicted felt constrained from exposing a defective trial 'lest on a new trial a heavier sentence be passed' (420). Secondly, the passing of a heavier sentence following conviction at a retrial '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' (420). His Honour added (420):
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.
Street CJ referred to and declined to follow the approach of the Full Court of the Supreme Court of South Australia in Garrett. His Honour observed (421):
It could be said that if the sentence on the first trial was manifestly inadequate then the judge on the new trial should be free to correct this. Whilst such a proposition has some practical attractions, they do not, in my view, overbear the considerations underlying what I regard to be the relevant principle of sentencing. The Crown's right to appeal against a manifestly inadequate sentence is available to it after the first trial. Such an appeal would, of course, come to an end where an appeal against conviction on the first trial is upheld. The accused would, however, have notice prior to prosecuting his appeal against conviction of the Crown's contention that his first sentence was inadequate and the Crown could, therefore, quite properly initiate and proceed with an appeal against the inadequacy of an equivalent sentence passed upon the accused in consequence of his conviction on the new trial.
After giving the fullest consideration to the weight which any decision of the Full Court of South Australia necessarily commands, I find myself in respectful disagreement with the conclusion in Garrett in so far as it allows the possibility of a sentence more severe than that passed at the first trial. The principle to which I refer restricts the upper limit of the sentence on the new trial. It does not operate to restrict the discretion to pass a lesser sentence …
Street CJ and Lusher J (Begg J dissenting) allowed the offender's appeal and reduced the sentence imposed at the retrial to one equivalent to that imposed at the original trial.
In R v Williams [No 2],[4] the offender was convicted of the same offence at the original trial and at the retrial. The sentence at the original trial was a fine of $1,000. The sentence at the retrial was 12 months' immediate imprisonment. The Crown had appealed against the original sentence but discontinued the appeal when the offender's appeal against conviction was allowed. The offender applied for leave to appeal against the sentence imposed at the retrial. The Court of Criminal Appeal of Western Australia granted leave to appeal but dismissed the appeal.
[4] R v Williams [No 2] [1982] WAR 281.
Burt CJ (Kennedy J agreeing) said (283):
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 noted that the so‑called principle was based upon 'policy' (283). His Honour referred to the policy considerations articulated by Street CJ in Gilmore.
Burt CJ then said (284):
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.
In R v Bedford,[5] the offender was convicted at the original trial of sex offences against two victims. The judge at the original trial sentenced the offender to 6 years 6 months' imprisonment in respect of the first victim and to an additional 3 years 6 months' imprisonment in respect of the second victim. The total effective sentence was 10 years' imprisonment with a non‑parole period of 5 years. After successful appeals against conviction, the appellant was retried for the alleged offences against the first victim. He was convicted and sentenced to 6 years 6 months' imprisonment with a non‑parole period of 3 years. The offender appealed against sentence. When the appeal was heard he was awaiting retrial for the alleged offences against the second victim. On the sentence appeal, the offender argued that he should have been given the benefit of 7½ months he had served in custody, which was exclusively referable to the sentences imposed following the original trial, in accordance with the principles stated in Gilmore. The Court of Criminal Appeal of New South Wales rejected the argument.
[5] R v Bedford (1986) 5 NSWLR 711.
Street CJ (Slattery CJ at CL and Brownie J agreeing) revisited and explained his Honour's comments in Gilmore, as follows (713 ‑ 714):
It is perhaps appropriate to make some reference to exactly what was decided in R v Gilmore. There had in that case been a retrial ordered from a first trial in respect of which there was no suggestion that the sentences passed were other than entirely appropriate for the criminality involved. In the course of my judgment in that case I said (at 419):
'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.'
Begg J dissented from the principle just stated; Lusher J expressed his agreement with it. It is significant to emphasise that the enunciation of the principle includes 'should ordinarily not receive'. The word 'ordinarily' must be given full room to operate. It might perhaps have been preferable to have expressed this as a prima facie approach rather than elevating it to 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.
Street CJ said that, in the case at hand, there was a specific consideration that rendered 'a departure from the prima facie approach', as explained in Gilmore, 'permissible' (714). In particular, when the offender was sentenced at the original trial some consideration must have been given to the totality principle in fixing the individual sentences (714). His Honour explained (714):
In the present case there is in my view a specific consideration that renders a departure from the prima facie approach permissible. It can be seen that the sentence for these particular attacks at the first trial would necessarily have been determined with some regard to what is called the principle of totality. The appellant at the first trial was standing for sentence in respect of two entirely separate attacks for which he was to receive cumulative terms. It can well be recognised in those circumstances that if he were standing for sentence for only the one or the other of those separate attacks then he might well have received longer individual sentences than those selected to make up the ultimate aggregate. In this case a period of six and a half years with a non-parole period of three years is by no means rendered excessive by recognising that it is in fact extended by another seven and a half months of pre-sentence full custodial time. I am not persuaded that his Honour erred in any way by departing from the prima facie approach stated in R v Gilmore. I do not consider that the overall requirements of justice in this case call for any intervention of this Court.
In R v Chen,[6] the offender was convicted of the same offence at the original trial and the retrial. The judge at the first trial sentenced the offender to 4 years 6 months' imprisonment with a non‑parole period of 2 years. The offender's appeal against conviction was allowed and a retrial was ordered. The offender was convicted again at the retrial. The judge at the retrial sentenced the offender to 4 years' imprisonment with a non‑parole period of 20 months. The judge at the retrial declared that a period of 3 months and 2 days be treated as already served under the sentence. The sentence imposed following the retrial was in fact more severe than the original sentence because of the abolition of remissions between the first and second trials.
[6] R v Chen [1993] 2 VR 139.
In the Court of Criminal Appeal of Victoria, Marks, Southwell and Harper JJ considered Garrett, Gilmore, Williams and Bedford. Their Honours approved the approach in Bedford and Williams in relation to the so‑called principle of restraint or ceiling principle. Their Honours dismissed the offender's application for leave to appeal against sentence because they were of the opinion that the second sentence in fact passed was a proper sentence. In the result, their Honours were not persuaded that a different sentence should have been imposed.
In Barker v The Queen (No 2),[7] the appellant was convicted at his original trial of two counts of defrauding the Commonwealth (being counts 1 and 2) and one count of perverting the course of public justice (being count 4). He was also convicted of two other offences. The appellant's appeal against conviction following the original trial was allowed and a retrial was ordered. The appellant was convicted of counts 1, 2 and 4 at the retrial. The jury could not agree in relation to one of the other offences and the Crown elected not to proceed with the remaining offence.
[7] Barker v The Queen (No 2) [1996] FCA 809; (1996) 70 FCR 1.
The judge at the original trial sentenced the appellant to 5 years' imprisonment in respect of counts 1 and 2, 3 years' imprisonment in respect of count 4, and 2 years and 5 years in respect of the other offences. The judge ordered that all of those sentences be served concurrently. The total effective sentence was therefore 5 years' imprisonment. The judge fixed a non‑parole period of 2 years.
The judge at the retrial sentenced the appellant to 4 years' imprisonment in respect of counts 1 and 2 and 3 years' imprisonment in respect of count 4. The judge ordered that the sentences be served concurrently. The total effective sentence was therefore 4 years' imprisonment. The judge fixed a non‑parole period of 18 months.
The appellant appealed against the sentences imposed at the retrial. Counsel for the appellant noted that at the original trial the appellant had been sentenced to 5 years' imprisonment with a non‑parole period of 2 years and at the retrial the appellant had been sentenced to 4 years' imprisonment with a non‑parole period of 18 months. Counsel submitted that it was 'self‑evident' that the sentences on the retrial were manifestly excessive because the appellant was sentenced only in respect of three convictions at the retrial as opposed to five convictions at the original trial. Counsel also submitted that the reduction in the non‑parole period was illusory because the appellant had spent in excess of 5 months in prison as a result of his convictions at the original trial before being released following his successful appeal against conviction.
A Full Court of the Federal Court (O'Loughlin, Finn and Madgwick JJ) dismissed the appellant's appeal against sentence. Their Honours said that the judge at the retrial was faced with 'a difficult task' and observed that the judge was 'virtually constrained to impose lighter head sentences: cf R v Gilmore' (14). Later in their reasons, their Honours said (14):
The primary necessity for the learned sentencing judge was to pronounce a sentence properly denunciatory of sustained fraud on the Commonwealth by a mature, professional man. At the same time, the judge evidently and properly took the view that it was appropriate to reduce Mr Barker's sentence because of some diminution of the number and quality of the charges of which he had been convicted at his first trial. The learned judge faced the practical difficulty that it was necessary to keep the reduction within bounds such that the sentence would not fail to reflect the inherent gravity of the offences. His Honour not only did not err on the side of an excessive sentence, his approach was correct.
In R v Petersen,[8] the applicant was initially charged with and tried for murder. He had pleaded guilty to manslaughter prior to the trial but the Crown refused to accept the plea. At the trial the jury convicted the applicant of manslaughter. The Court of Appeal of Queensland allowed the applicant's appeal against conviction and ordered a retrial. The applicant again offered to plead guilty to manslaughter and the Crown accepted the plea. Upon the first conviction, the applicant was sentenced to 12 years' imprisonment. A significant factor in the first sentencing judge arriving at that sentence was the issue of parity in relation to a co‑accused who had also been convicted of manslaughter. On appeal, the co‑accused was acquitted. Upon the second conviction, the applicant was sentenced to 15 years' imprisonment.
[8] R v Petersen [1998] QCA 65; [1999] 2 Qd R 85.
In the Court of Appeal of Queensland, Fitzgerald P, McPherson JA and Dowsett J reviewed a number of previous authorities in relation to the so‑called principle of restraint or ceiling principle including Garrett, Gilmore, Williams, Bedford and Chen. Their Honours said (87):
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.
Fitzgerald P, McPherson JA and Dowsett J concluded that the sentence imposed on the second occasion was 'beyond the appropriate range' and, therefore, apart from the principle of restraint, the court was required to allow the appeal and resentence the applicant (87).
In McL v The Queen,[9] the appellant was tried on 24 counts of sexual offences against his two step‑daughters. He was found guilty on 16 counts. The trial judge imposed individual sentences, some of which were to be served concurrently and others cumulatively. The total effective sentence was 12 years' imprisonment with a non‑parole period of 10 years. The Court of Appeal of Victoria allowed the appellant's appeal against conviction, quashed the judgments of conviction on four counts and ordered a new trial on those counts. The other convictions stood. The Court of Appeal ordered that the sentences passed by the trial judge in respect of the counts upon which conviction was affirmed be set aside, that new terms of imprisonment be imposed for those counts and that some of the new terms be served concurrently and others cumulatively. In the result, the total effective sentence remained 12 years' imprisonment with a non‑parole period of 10 years. The Court of Appeal arrived at that result on the basis of its conclusion that the individual sentences, and the total effective sentence of 8 years and 6 months, imposed by the trial judge for the convictions which stood, were manifestly inadequate. The High Court held that the Court of Appeal's view was well open. No attempt was made in the High Court to suggest otherwise or to suggest that the Court of Appeal had made any error in arriving at its conclusion.
[9] McL v The Queen [2000] HCA 46; (2000) 203 CLR 452.
The principal issue in the High Court concerned the meaning and application of s 569(1) of the Crimes Act 1958 (Vic), which conferred power on the Court of Appeal in a criminal appeal, in certain circumstances, to resentence an appellant who had been convicted of multiple offences and who appealed successfully against some of his or her convictions. A majority of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting) dismissed the appeal.
Gleeson CJ, Gaudron and Callinan JJ said in relation to the so‑called principle of restraint or ceiling principle [23]:
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 ((1979) 1 A Crim R 416) in which Street CJ (at 419 ‑ 420) 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. The weight to be given to that consideration depends, of course, upon the circumstances of the individual case. This would be a matter relevant to the exercise of discretion by a judge sentencing the appellant following convictions after a second trial on the four counts in question. It may well have been a matter which Batt JA had in mind when he expressly, and appropriately, declined to say anything that might pre‑empt such an exercise of discretion. If it has a bearing either way, the decision in Gilmore operates against, rather than in favour of, the appellant in the present appeal, because it could be used to support an argument, of the kind foreshadowed by Batt JA, that the sentences imposed following a retrial should be made concurrent with the sentences imposed by the Court of Appeal. However, as Batt JA recognised, it is undesirable to say anything, at this stage, that would pre‑empt an exercise of discretion at a future sentencing proceeding.
Their Honours did not refer to the reasons of Street CJ in Bedford or to any other intermediate appellate decisions apart from Gilmore.
McHugh, Gummow and Hayne JJ referred to Gilmore, Williams, Bedford, Chen, Barker (No 2) (cited as Campbell v The Queen) and Petersen in the course of discussing the so‑called principle of restraint or ceiling principle. Their Honours said [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 (R v Gilmore (1979) 1 A Crim R 416; Williams v The Queen [No 2] [1982] WAR 281; R v Bedford (1986) 5 NSWLR 711; R v Chen [1993] 2 VR 139; Campbell v The Queen (unreported; Federal Court; 11 September 1996); R v Petersen [1999] 2 Qd R 85). 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.
In R v MM,[10] the appellant was convicted at his original trial of 14 counts. After a successful conviction appeal, he was retried on the 14 counts and convicted of 11 counts. At the retrial the appellant received the same overall sentence as he received at the original trial. The appellant appealed against sentence. He submitted that his overall sentence should be reduced to reflect the fact that at the retrial he had been acquitted on three counts. The Court of Criminal Appeal of New South Wales (Levine, Hidden and Howie JJ) dismissed the appeal.
[10] R v MM [2002] NSWCCA 431; (2002) 135 A Crim R 216.
Levine J (Hidden J agreeing) said that the fundamental proposition advanced by the appellant was that 'after a retrial sentences should not be increased unless, generally, there are good reasons for doing so' [7]. His Honour referred to a number of cases including Gilmore, Bedford, Barker (No 2) and McL.
Levine J observed that, where the convictions following a retrial are fewer than at the original trial, two factors provide an important guide in the approach to sentencing, namely [16]:
The first is the manner in which the first sentencing judge applied the totality principle (it was so regarded in Bedford). The second is the overall requirement that the sentence must be one that appropriately reflects the objective gravity of the offences.
After mentioning the 'prima facie approach' referred to in Bedford, with reference to the policy considerations mentioned in Gilmore, Levine J observed [25]:
Factors relevant to the re-sentencing power of an appeal court after quashing only some of an appellant's convictions are equally relevant to a sentencing exercise when there has been a conviction for some, but not all, offences on a re-trial. As Bedford and McL demonstrate, the manner in which the totality principle has been accommodated in the initial sentencing exercise will guide the subsequent determination of the appropriate sentence. It may provide sound reason to depart from the 'prima facie approach' of imposing no greater sentence than that initially imposed.
Levine J made these comments about the appellant's argument [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. … If this is something that should ordinarily occur, it was not recognised as such by the High Court [in McL]. It is implicit in the above extracts from the two joint judgments [in McL] 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.
Levine J noted that it was conceded before the judge at the retrial that the sentences imposed by the judge at the original trial were appropriate [27]. His Honour added [27]:
The only issue [on sentencing at the retrial] 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 appellant], it was contended that an additional fundamental consideration in the circumstances with which the court presently is concerned, is that of 'fairness' to [the appellant].
Levine J said that the authorities confirm 'the discretion which reposes in the judge sentencing after the retrial to make an independent assessment as to the appropriate punishment' [30]. His Honour then said that it must be demonstrated why the total effective sentence imposed by the judge at the retrial was 'beyond the scope of the sentencing discretion exercised by [the judge]' [30].
Levine J made these remarks about Gilmore, Bedford, Barker (No 2) and McL [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 14 offences and the same sentence 'x' is imposed in relation to 11 of those 14 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. (emphasis added)
Levine J held that '[a]n examination of [the sentencing reasons of the judge at the retrial], taking into account "fairness", taking into account no suggestion of "inadequacy" in relation to [the sentences of the judge at the original trial], discloses the principled application of the convention' in sentencing [33]. His Honour added that, having regard to the circumstances of the convictions at the retrial, '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' [33]. Further, the criminality involved in the offences of which the appellant was convicted at the retrial was such as 'to warrant the sentences imposed' [33]. No error of principle had been made by the judge at the retrial and no other sentence was warranted [34].
Howie J expressed his general agreement with Levine J's reasons. His Honour then made some brief observations of his own.
In R v Youkana,[11] Howie J (Spigelman CJ and Hunt AJA agreeing) said that the 'rule of practice' considered in MM 'lays down no more than a prima facie approach to the re‑sentencing of the offender and the second sentencing judge has a discretion to depart from the earlier sentence based upon that judge's assessment of the appropriate sentence to be imposed for the offence' [14]. His Honour added that if the second sentencing judge is to depart from the prima facie approach, the judge would be expected, on the authority of Bedford and MM [8] ‑ [12], to give reasons for having done so [14].
[11] R v Youkana [2005] NSWCCA 231.
In R v Baltensperger,[12] Bleby J carried out a detailed review of the case law. His Honour noted that conflicting views had been expressed in different jurisdictions. Bleby J (each of Vanstone J and White J agreeing in separate reasons) also noted that there were inconsistent decisions in South Australia. Bleby J and White J were of the opinion that Garrett should no longer be followed. Bleby J arrived at the following conclusions [123] ‑ [127]:
In the first place, it must be acknowledged that the sentencing judge, after a retrial, has conferred on him or her a discretion which he or she must exercise in accordance with well-established principles. That discretion is not removed merely because another judge has already imposed a sentence for the same offence. The second judge is not sitting on some sort of process of review of the first sentence.
Secondly, in many cases, the facts on which a sentencing judge is required to impose the second sentence may be different. New facts relevant to the sentence to be imposed may have arisen between the first and second trials. They must be given their appropriate weight and may well justify a different result.
Thirdly, the fact that the prisoner has been previously sentenced and the nature of that sentence is itself a relevant fact to be taken into account on the second sentence. That fact gains added weight from the policy considerations referred to in Gilmore and adopted in later cases …
How are the second and third principles to which I have referred to be reconciled with the exercise of the discretion to which I have referred in the first principle? They are relevant factors which, if ignored, will constitute an error in sentencing. What is made clear by all cases except Garrett is that the weight to be given to the first sentence, for the policy reasons mentioned, will ordinarily not justify a departure from that sentence. In other words, merely because the second judge would impose a different sentence, thereby necessarily considering that the first sentence is either excessive or inadequate, will be insufficient. Something more is needed in order to depart from what should ordinarily apply.
In some cases, different facts may warrant the departure. If not, one is constrained to hold that, if a heavier sentence is to be justified as being out of the ordinary, the second judge must be satisfied that the first sentence was manifestly inadequate or clearly inadequate or outside the appropriate sentencing range. I consider that these expressions mean the same.
[12] R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34.
Vanstone J and White J, in separate reasons, expressed their opinion on the correct approach with at least some difference in emphasis from each other and from Bleby J.
A division of judicial opinion at appellate level in South Australia is also apparent from the more recent decisions of R v J, SM[13] and Warne v The Queen.[14]
[13] R v J, SM [2015] SASCFC 185 (Sulan, Peek & Nicholson JJ) [11] ‑ [12].
[14] Warne v The Queen [2020] SASCFC 124 (Hughes J; Peek & Stanley JJ agreeing) [29] ‑ [43].
In Pollock v The State of Western Australia,[15] Mazza J (Martin CJ and McLure P agreeing) described the so‑called principle of restraint as follows:
Where a successful appellant is convicted after retrial, the judicial officer resentencing the offender must exercise his or her own sentencing judgment and discretion. In doing so, the sentencer must have regard to what is sometimes called 'the rule of restraint' (although it is in truth not a rigid rule) that ordinarily a successful appellant should not receive a heavier sentence than he or she received at the original trial. A sentencer may impose a heavier sentence if the facts disclosed at the retrial are different or the sentence originally imposed was manifestly inadequate. Where it is said that the sentence imposed at the original trial was manifestly inadequate, it may be relevant that the sentence imposed at that trial was the subject of a prosecution appeal which was 'derailed' by the successful appeal against conviction.
[15] Pollock v The State of Western Australia [2011] WASCA 133 [37].
That passage from Mazza J's reasons in Pollock was referred to with approval by Quinlan CJ, Beech and Hall JJA in XMB v The State of Western Australia.[16]
[16] XMB v The State of Western Australia [2023] WASCA 4 [64].
In Murdoch (A Pseudonym) v The Queen,[17] Redlich and Coghlan JJA said that 'it is well settled that following a retrial a judge should ordinarily impose the sentence that has been previously imposed' [13]. Their Honours agreed with Priest JA that no satisfactory reason had been shown why the previous sentence imposed on the appellant was not imposed again [13]. Priest JA considered Chen and McL [162] ‑ [163]. His Honour said that '[a]n increase by a second sentencing judge of a sentence first imposed should be rare', '[t]he first sentence ordinarily should be regarded as a "ceiling"' and, in the case at hand, 'the circumstances did not justify departure from the ordinary rule' [167].
[17] Murdoch (A Pseudonym) v The Queen [2013] VSCA 272; (2013) 40 VR 451.
In R v Bauer (A Pseudonym),[18] the High Court decided that the approach of the Court of Appeal of Victoria in Murdoch (A Pseudonym) in determining the admissibility of tendency evidence, in the context of the conviction appeal in Murdoch (A Pseudonym), must be taken as overruled. The High Court did not refer to the sentence appeal in Murdoch (A Pseudonym).
[18] R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [70].
In Armstrong v The Queen,[19] Bathurst CJ (Price and Beech‑Jones JJ agreeing) reviewed the case law. His Honour said that the 'ceiling' principle applicable to sentencing 'in cases of conviction following a retrial, consequent upon a successful appeal, is well established' [41]. His Honour cited and discussed, amongst other cases, Gilmore, Bedford, McL and MM. His Honour said that the application of the 'ceiling' principle is 'relatively straightforward when the second sentence is for the same offence as that for which the offender was originally sentenced' but, when that is not the case, the application of the principle is 'more complex' [46]. His Honour mentioned Bedford and MM as instances where the application of the principle had been more complex [46] ‑ [47].
[19] Armstrong v The Queen [2015] NSWCCA 273.
Beech‑Jones J, after expressing his agreement with the reasons of Bathurst CJ, elaborated [66]:
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.
Recently, in Chia v The Queen,[20] Dhanji J (Leeming JA and Wilson J agreeing) referred with approval to the reasons of Bathurst CJ and Beech‑Jones J in Armstrong.
[20] Chia v The Queen [2023] NSWCCA 63 [40] ‑ [44].
In my opinion, a number of propositions, including the following, may be distilled from the case law:
(a)A judge, who is sentencing an offender after a retrial following the offender's successful appeal against conviction at the original trial, is not 'resentencing' the offender, but exercising an independent sentencing discretion in relation to the offences of which the offender has been convicted at the retrial. See Williams [No 2] (283); MM [32]; Youkana [14]; Baltensperger [123]; Pollock [37].
(b)The so‑called principle of restraint or ceiling principle describes a consideration which a judge, who is sentencing an offender after a retrial following the offender's successful appeal against conviction at the original trial, should take into account. See McL [23], [72].
(c)The proper application of the so‑called principle of restraint or ceiling principle requires a consideration by the judge at the retrial of all the components of the original sentence including (in the case of multiple offences) the total effective sentence, the individual sentences, the orders for cumulacy or concurrency, any backdating of the total effective sentence and any parole eligibility order. See Armstrong [66]; Chia [41].
(d)Ordinarily, absent countervailing considerations, the sentences imposed by the judge at the original trial should be regarded as the upper limit of the sentences to be imposed following the retrial, so that the offender will not be seen to have been in a worse position as a consequence of the offender's successful appeal against conviction at the original trial. See McL [23], [72].
(e)However, the judge at the retrial may impose sentences that are higher than those imposed by the judge at the original trial for good reason; for example, if the sentences imposed by the judge following the original trial were manifestly inadequate or if the facts established at the time of sentencing following the retrial are materially different from those that were established at the time of sentencing following the original trial. See Bedford (714); Williams [No 2] (283 ‑ 284); Petersen (87); McL [23], [72]; MM [30], [32]; Pollock [37].
(f)An exercise of discretion by the judge at the retrial that increases the original sentence given to the offender should be rare. See McL [72]; Murdoch (A Pseudonym) [167]. Where an exercise of discretion by the judge at the retrial increases the original sentence, good reason for the increase should be identified by the judge. See Bedford (714); MM [32]; Youkana [14].
(g)Where an offender is convicted at the retrial of fewer offences or less serious offences than at the original trial, the so‑called principle of restraint or ceiling principle applies, as modified in the manner and to the extent explained and illustrated in Bedford, Barker (No 2) and MM. The manner in which the totality principle was applied at the original sentencing may be significant in the determination of the sentencing outcome following the retrial. See MM [16], [25]. The sentencing outcome following the retrial must be an appropriate reflection of the objective gravity of the overall offences, having regard to all relevant facts and circumstances and all relevant sentencing factors. The so‑called principle of restraint or ceiling principle, as modified in the manner and to the extent explained and illustrated in those cases, does not mandate that the judge at the retrial make a proportionate reduction in the total effective sentence imposed by the judge at the original trial.
In the present case, I am satisfied, for the following reasons, that the total effective sentence of 10 years' imprisonment imposed by Barbagallo DCJ did not breach the so‑called principle of restraint or ceiling principle.
First, Barbagallo DCJ was not 'resentencing' the appellant, but was exercising an independent sentencing discretion in relation to the 16 counts of which the appellant was convicted upon entering his pleas of guilty during the retrial.
Secondly, Barbagallo DCJ (like the original trial judge, Stevenson DCJ) was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). Barbagallo DCJ's fundamental task (like that of Stevenson DCJ), in sentencing the appellant, was to fix an appropriate sentence for each offence and then to consider questions of cumulation or concurrence as well as questions of totality. See Pearce v The Queen;[21] Nguyen v The Queen.[22]
[21] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[22] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
Thirdly, Barbagallo DCJ was sentencing the appellant in respect of 16 counts. Stevenson DCJ sentenced the appellant for those 16 counts and an additional eight counts. The facts and circumstances of most of the eight counts which the State ultimately did not proceed with were less serious than most of the 16 counts.
Fourthly, there was a difference in the sentencing factors relevant to the sentencing before Barbagallo DCJ compared to the sentencing factors relevant to the sentencing before Stevenson DCJ in that, pursuant to s 9AA of the Sentencing Act, Barbagallo DCJ made a 2% reduction, for the plea of guilty, on the 'head sentence' (as defined in s 9AA(1)) that she would otherwise have imposed for each offence. The pleas of guilty were also a relevant sentencing factor to be taken into account by Barbagallo DCJ in deciding upon the total effective sentence. However, the mitigation available to the appellant for his belated pleas of guilty was very modest.
Fifthly, I agree with Mitchell and Hall JJA, for the reasons they give, that any differences between the findings of Barbagallo DCJ and the findings of Stevenson DCJ in relation to the appellant's personal circumstances were not material for sentencing purposes. Further, as Mitchell and Hall JJA note, any differences in the findings in relation to remorse were of marginal weight.
Sixthly, there were no other material differences between the findings of Barbagallo DCJ and the findings of Stevenson DCJ for sentencing purposes.
Seventhly, both Barbagallo DCJ and Stevenson DCJ made parole eligibility orders and backdated the total effective sentences they imposed to give credit for the time the appellant had spent in custody in respect of the offending.
Eighthly, none of the individual sentences imposed by Stevenson DCJ was manifestly excessive or inadequate and the total effective sentence imposed by his Honour did not infringe the totality principle.
Ninthly, Barbagallo DCJ was cognisant of the sentences imposed by Stevenson DCJ. Barbagallo DCJ expressly referred in her sentencing remarks to the total effective sentence imposed by Stevenson DCJ upon the appellant being convicted of the 24 counts at the original trial (ts 965).
Tenthly, some of the individual sentences imposed by Barbagallo DCJ for some individual counts were higher than those imposed by Stevenson DCJ for those counts. However, some of the individual sentences imposed by Barbagallo DCJ for other individual counts were lower than those imposed by Stevenson DCJ for those counts. In the present case, the differences in the individual sentences were not of any significance in the context of the so‑called principle of restraint or ceiling principle.
Eleventhly, the total effective sentence imposed by Barbagallo DCJ (namely 10 years' imprisonment) was lower than the total effective sentence imposed by Stevenson DCJ (namely 10 years 8 months' imprisonment).
Twelfthly, the total effective sentence of 10 years' imprisonment imposed by Barbagallo DCJ was necessary to reflect the objective gravity of the 16 offences for which the appellant was being sentenced. Further, the total effective sentence imposed by her Honour bore a proper relationship to the overall criminality involved in the 16 counts, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. The total effective sentence of 10 years' imprisonment was a proper sentence. The appellant was not treated unfairly. No different sentence should have been imposed.
Thirteenthly, the disparity of eight months between the total effective sentence imposed by Barbagallo DCJ and the total effective sentence imposed by Stevenson DCJ was open to her Honour and, indeed, was appropriate. The sentencing disposition by Barbagallo DCJ, compared to the sentencing disposition by Stevenson DCJ, was not such as to give the appearance in the mind of reasonable and informed members of the public (or the appellant acting reasonably) that the total effective sentence imposed by Barbagallo DCJ included a retributive element imposed because the appellant had successfully appealed against his convictions at the original trial. Further, there is no basis for apprehending that Barbagallo DCJ's sentencing disposition, compared to Stevenson DCJ's sentencing disposition, might be perceived by reasonable and informed members of the public (or the appellant acting reasonably) as discouraging an accused from appealing against conviction or sentence.
Fourteenthly, in the circumstances, Barbagallo DCJ was entitled and obliged to give effect to her own assessment of the appropriate sentencing outcome. Her Honour did not, in any relevant sense, impose a heavier total effective sentence than Stevenson DCJ, and accordingly her Honour was not bound to explain the difference in the total effective sentences.
The ground of appeal has not been made out.
Conclusion
Leave to appeal should be granted. However, as I have explained, the ground of appeal has not been established. The appeal must be dismissed.
MITCHELL & HALL JJA:
Introduction and summary
In May 2021, the appellant was convicted after trial by jury of 24 sexual offences against three child complainants. It is convenient to refer to the three complainants as SB, JW and BB. The offending occurred between 2003 ‑ 2014. At the time of the offending against each complainant, SB was 14 ‑ 15 years old, JW was 11 ‑ 12 years old and BB was 16 years old. On 4 June 2021, the trial judge, Stevenson DCJ, sentenced the appellant to a total effective sentence of 10 years 8 months' imprisonment for those offences. The appellant was acquitted at that trial of one count of alleged offending against SB.
The appellant appealed against these convictions. On 22 April 2022, this court allowed the appellant's appeal and set aside the convictions. The court ordered a retrial on the 24 counts of which the appellant had been convicted at the first trial.[23]
[23] DWG v The State of Western Australia [2022] WASCA 45.
A new trial of the 24 charges of which the appellant was initially convicted commenced on 23 May 2022. However, the jury were discharged on the second day of trial as a result of an editing error in SB's pre‑recorded evidence.[24] A third trial commenced on 25 May 2022. On the third day of the third trial, the appellant entered pleas of guilty to 16 of the charged offences. The State accepted those pleas in satisfaction of the indictment and discontinued the other counts.
[24] Trial ts 727 ‑ 734.
On 6 September 2022, the trial judge at the third trial, Barbagallo DCJ, sentenced the appellant to a total effective sentence of 10 years' imprisonment for the 16 offences of which he had been convicted at the third trial.
Details of the charges and the sentences imposed by Stevenson DCJ and Barbagallo DCJ are set out in the appendix to these reasons. As can be seen from that table, the total effective sentence imposed by Barbagallo DCJ for the 16 offences of which the appellant was convicted at the third trial was 8 months less than the total effective sentence imposed by Stevenson DCJ for the 24 offences of which the appellant was convicted at the first trial.
The appellant now appeals against the sentence imposed at the third trial on the sole ground that the sentence imposed by Barbagallo DCJ breached the 'principle of restraint'. Under that principle, an offender who successfully appeals against his or her conviction should not ordinarily receive a heavier sentence on retrial than he or she received at the original trial. The appellant contends that this principle was breached even though the total effective sentence imposed by Barbagallo DCJ on retrial was 8 months lower than that imposed by Stevenson DCJ at the first trial.
The appellant contends that the principle of restraint also applies where the offences for which an offender is convicted on a retrial involve materially lower overall criminality than the offences of which he or she was originally convicted. The appellant contends that, in those circumstances, the total effective sentence imposed at retrial should not ordinarily exceed what would be regarded as a proportionate sentence for all of the counts of which the offender was convicted on retrial having regard to the total effective sentence received after the first trial. The appellant contends that the principle of restraint was breached in the present case because the reduction in his overall sentence was inadequate to reflect the reduction in his overall criminality reflected in his conviction of 16 offences on pleas of guilty at the third trial as opposed to the 24 offences of which he was convicted by a jury at the first trial.
The appeal should be dismissed on the basis that the principle of restraint operates only as an upper limit on the sentence to be imposed at a retrial. In general terms, in the absence of countervailing considerations, it requires that an offender should not be worse off because he or she has successfully appealed against his or her original convictions. The principle does not require that an offender be better off to any particular extent by reason of having a conviction quashed. Nor does it require a sentencing judge to sentence an offender by reference to an earlier sentence. In the circumstances of the present case, an allegedly insufficient reduction in the total effective sentence which was imposed at the first trial cannot form a basis for concluding that the principle of restraint was breached.
In any event, in all the circumstances of this case, an 8-month reduction was proportionate to the reduced overall criminality involved in the offences of which the appellant was convicted at the third trial as compared to the first trial. The appellant's appeal would fail even if (contrary to our view) the principle of restraint required a proportionate reduction of the total effective sentence imposed at the first trial.
Circumstances of offending
Barbagallo DCJ made the following findings as to the circumstances of the appellant's offending.[25] References to count numbers are to the charges on the new indictment dated 18 May 2022, which was the subject of the third trial.
Counts 1, 2, 5 ‑ 7, 9 ‑ 11, 15 and 16: offending against SB
[25] Trial ts 967 ‑ 974.
SB was 14 ‑ 15 years old at the time of the appellant's offending against him. The appellant was between 46 and 47 years of age. The offending against SB occurred between 30 October 2003 and 31 October 2004. SB was a neighbour of the appellant's wife until SB and his family moved house in early 2002.[26]
First incident involving SB
[26] Trial ts 967- 968.
Between October 2003 and October 2004, SB was a member of a go‑karting club. The appellant agreed to help SB with his 'go‑karting interests'. On one occasion upon the appellant's invitation, SB attended the appellant's house to 'talk about go‑karting techniques'. The appellant was home alone. While SB was in the kitchen, the appellant grabbed SB's penis and said, 'Is it okay?' He led SB to the bedroom, sat SB on the bed and placed SB's hand on the appellant's penis, beneath his shorts. The appellant rubbed SB's hand up and down his penis and said words to the effect of, 'You better get used to grabbing this' (count 1). The appellant then masturbated SB's penis under his shorts (count 2). He removed SB's shorts and underpants and each continued to masturbate the other until the appellant ejaculated.[27]
Second incident involving SB
[27] Trial ts 968.
On one Sunday after the first incident, SB rode his bike to the appellant's house, where the appellant led him into the bedroom. Both became naked. The appellant began to masturbate SB's penis and then SB masturbated the appellant's penis. These acts were the subject of counts 3 and 4 on the indictment respectively, which were discontinued upon the appellant's guilty pleas. The conduct formed part of the facts found by Barbagallo DCJ to be part of the context of other offending.[28]
[28] Trial ts 968.
The appellant suggested to SB that they try something different and began sucking on SB's penis (count 5). The appellant asked if SB wanted to put lubricant on SB's penis, stating that, if he did so, the appellant would be unable to suck SB's penis again. SB replied, 'Okay then'. The appellant applied lubricant to SB's penis and masturbated him until he ejaculated (count 6). The appellant asked SB to suck his penis and put his penis in SB's mouth (count 7). The appellant instructed SB to 'finish [him] off' and SB masturbated the appellant until he ejaculated.[29] This act of procuring SB to touch his penis was the subject of count 8 on the indictment, which was discontinued upon the appellant's guilty pleas. The conduct formed part of the facts found by Barbagallo DCJ to be part of the context of other offending.
Third incident involving SB
[29] Trial ts 968 - 969.
On another Sunday, SB again attended the appellant's house, where the appellant led SB into the bedroom. Both laid naked on the bed and masturbated each other. The appellant asked SB if he wanted to 'try anal'. SB rolled onto his side while the appellant lifted SB's left leg and began pushing his erect penis against SB's anus in an attempt to penetrate his anus (count 9). SB said that he was not comfortable and the appellant stopped. The appellant and SB then masturbated each other until both ejaculated (counts 10 and 11).[30]
SB indicates he does not want to participate in sexual activity
[30] Trial ts 969.
On another occasion, SB attended the appellant's house and told the appellant that he did not want to do these things anymore. The appellant told SB that it was 'give and take, a bartering system', on the basis that the appellant was helping SB with go‑karting. SB offered to assist the appellant with housework and gardening, but the appellant was only interested in his sexual interactions with SB. Contact between the appellant and SB 'went quiet for a while'. On a few occasions, the appellant and SB were supposed to go to the go-carting track but it did not eventuate.[31]
Conduct the subject of discontinued count 12
[31] Trial ts 969.
It is convenient to note here the circumstances which Stevenson DCJ had found to be the subject of the offending charged in count 12 on the indictment. That count was discontinued after the appellant pleaded guilty to other counts, and Barbagallo DCJ did not make any findings in relation to the circumstances to which count 12 related.
The following facts are taken from the agreed statement of material facts dated 2 June 2021, which Stevenson DCJ formally incorporated into his sentencing remarks.[32]
[32] Trial ts 564.
On an occasion a while after the interaction referred to in [93] above, the appellant contacted SB and asked SB if he wanted to go to the drag races, to which SB said yes. The appellant picked SB up in his car and drove them to the drag races. On the way home, the appellant stopped his car on a side street. SB did not want to do anything at that point so the appellant asked SB to masturbate him. SB masturbated the appellant's penis until the appellant ejaculated. He then drove SB home. This act of procuring SB to touch his penis was the subject of count 12 on the indictment.
Fourth incident involving SB
On a further occasion, the appellant suggested that he and SB visit the appellant's father's home to modify one of his father's trailers to be a go‑kart trailer. The appellant picked SB up from school and drove him to the appellant's father's house. The appellant and SB had dinner with the appellant's parents, after which the appellant's parents retired to the front of the house. SB went to the bedroom in which he was to sleep and saw the appellant, naked, in the doorway of the appellant's bedroom. The appellant asked SB to come into his bedroom. In the appellant's bedroom, SB became naked and they both then masturbated each other's penises. These acts were the subject of counts 13 and 14 on the indictment respectively, which were discontinued upon the appellant's guilty pleas. The conduct formed part of the facts found by Barbagallo DCJ to be part of the context of other offending.[33]
[33] Trial ts 969 - 970.
The appellant kissed SB on the lips and asked whether he liked it, to which SB replied, 'Not really'. SB then lay on top of the appellant while the appellant laid on his back, and the appellant began to rub his erect penis against SB's erect penis (count 15). The appellant then pushed SB's penis into the appellant's anus, causing SB's penis to penetrate his anus (count 16). SB ejaculated into the appellant's anus and the appellant continued to masturbate his own penis until he ejaculated. SB felt 'disgusted' by what had happened and took a shower.[34]
[34] Trial ts 970.
After this fourth incident, SB sold his go‑kart for approximately $1,000. SB told the appellant that he had not told his mum about the sexual acts after being asked by the appellant.[35]
Counts 17, 18, 20 and 21: offending against JW
[35] Trial ts 970.
JW is the appellant's step‑grandson. He was 11 ‑ 12 years old at the time of the appellant's offending against him, while the appellant was 52 years old.[36]
First incident involving JW
[36] Trial ts 970.
The first incident involving JW occurred in 2009 at the appellant's house while JW's mother and grandmother (ie, the appellant's wife) were at church. On this occasion, the appellant asked JW if he had any pubic hair. The appellant said, 'Let's have a look' after JW said that he did not know. The appellant pulled down JW's shorts and underwear, grabbed his penis and lifted it up (count 17). JW froze and the appellant said, referring to JW's pubic hair, 'It looks like peach [fuzz]'.[37]
Second incident involving JW
[37] Trial ts 970 - 971.
On another occasion in 2009, the appellant set up pornography on his computer while he and JW were alone in the house. The appellant told JW that he would watch it with JW. The appellant removed his clothing and told JW to remove his clothing, which he did. The appellant sat JW down on his right leg and rubbed JW's hand up and down JW's penis for approximately 2 minutes (count 18). Whilst this was happening, the appellant placed JW's other hand on the appellant's penis and encouraged JW to rub his penis. JW said that he did not want to and the appellant stopped.[38]
[38] Trial ts 971.
The appellant then spoke to JW about an area of the body called the 'gooch', which the appellant explained was the area between the testicles and anus. The appellant told JW that pressing this area during ejaculation 'makes you feel better'. The appellant then placed a finger on JW's perineum and applied pressure to that area. The appellant removed his finger a short time later. The act of touching JW's perineum was the subject of count 19 on the indictment, which was discontinued upon the appellant's guilty pleas. The conduct formed part of the facts found by Barbagallo DCJ to be part of the context of other offending.[39]
Third incident involving JW
[39] Trial ts 971.
On a further occasion in 2009, the appellant again put pornography on the computer while he and JW were alone in the house. Both were naked and JW sat on the appellant's thigh. The appellant attempted to convince JW to suck his penis before he moved his head towards JW's penis, with his mouth open. JW blocked the appellant's face with his hands, which was about 10 ‑ 15 cm from JW's penis (count 20). The appellant repeatedly said, 'It's not gross. It's normal. It feels good'. The appellant tried to convince JW to suck his penis and that JW was bisexual. The appellant then attempted to force JW's head onto the appellant's penis by putting his hands on the back of JW's head. JW resisted and the appellant then placed his pre‑ejaculate in JW's mouth with his finger, saying, 'See, it's normal. It tastes fine'.[40]
Fourth incident involving JW
[40] Trial ts 971 - 972.
On an occasion in November ‑ December 2009, the appellant picked JW up from a tennis training session and, while driving, began massaging JW's penis outside of his shorts. JW attempted to push the appellant's hands away. The appellant then rubbed JW's penis and testicles inside his shorts and underwear (count 21).[41]
Uncharged acts on a cruise ship
[41] Trial ts 972.
In late December 2009, the appellant was on a cruise with JW and other family members. While the pair were alone in the appellant's cabin, two further incidents occurred, the events of which are materially the same. On these occasions, the appellant and JW were watching movies on a laptop when the appellant removed his and JW's clothing. He began stroking JW's penis with his hand in an attempt to give JW an erection, then placed JW's hand on his penis and made JW masturbate him until he ejaculated.[42]
Counts 22 and 23: offending against BB
[42] Trial ts 972.
BB is the appellant's nephew. He was 16 years old at the time of the appellant's offending against him, while the appellant was 56 ‑ 57 years old. The appellant would give BB driving lessons.[43]
[43] Trial ts 973.
During one driving lesson between April 2013 and June 2014, the appellant told BB that if he went over the speed limit by 3 km per hour, BB would have to suck the appellant's penis at home. When they returned home, the appellant removed his own shorts and underwear and told BB to suck his penis. BB told the appellant he was not gay and did not want to do it. The appellant said words to the effect of, 'How do you know you're not gay if you haven't tried it?' and encouraged him to try. The appellant said there was nothing to be afraid of and that his penis was 'just a piece of meat'. BB was petrified and repeatedly told the appellant that he did not want to do it. The appellant told BB that he was bisexual and was masturbating his own penis before removing BB's shorts and underwear. BB froze and stared at the ceiling. The appellant then touched BB's penis against his own (count 22). The appellant placed BB's hand on the appellant's penis and moved BB's hand up and down (count 23).[44]
[44] Trial ts 973 - 974.
The appellant then fondled BB's penis. This act was the subject of count 24 on the indictment, which was discontinued upon the appellant's guilty pleas. The conduct formed part of the facts found by Barbagallo DCJ to be part of the context of other offending.[45]
[45] Trial ts 974.
BB got dressed and the appellant became angry, saying that BB was making him 'feel like a pedo'. He told BB that he did not want BB's parents to find out because that would break up the family and BB would be responsible. Later, the appellant showed BB where he was to sleep and said that the bed had to be made up exactly the same way, otherwise BB would have to suck his penis. BB took a photograph of the bed.[46]
[46] Trial ts 974.
The next morning, the appellant ran naked past BB's room. BB showered in his clothes because he was scared the appellant would come in. BB made up the bed as it had been the night before, although the appellant found fault and said, 'You know what that means, don't you?' The appellant told BB to sit on the bed and that BB had to suck his penis, while BB stated that he did not want to. BB left as the appellant was about to remove his underwear and the appellant became angry. He said that BB was making him 'feel like a pedo' and asked if he had 'fucked [BB] up in the head'.[47]
The vulnerability of the complainants
[47] Trial ts 974.
The sentencing judge found that the three complainants were vulnerable as a result of various factors, including their age and the appellant's position of trust. The appellant physically and mentally isolated the complainants away from immediate help, offended against them during their formative years and took advantage of the fact that the complainants were 'impressionable, insecure and trusting'. Her Honour found that each of the complainants was inherently vulnerable to this type of offending, as the appellant used his position of trust and the power imbalance to offend against the complainants.[48]
[48] Trial ts 975 ‑ 976.
Victim impact
Each complainant wrote a victim impact statement. The statements spoke of the breach of trust felt by the complainants and the pervasive impact of the appellant's offending on their lives 'in every way imaginable', including the negative impacts on their mental health, activities and personal relationships.[49]
[49] Trial ts 976 ‑ 978.
Personal circumstances
The findings by Barbagallo DCJ and Stevenson DCJ as to the appellant's personal circumstances were broadly consistent. It is therefore unnecessary for the purposes of resolving this appeal to set out the detail of those personal circumstances.
Speaking broadly, the appellant was 65 years old at the time of sentencing for the 16 offences of which he was convicted at the third trial. He was married and had two children from a previous marriage from whom he was estranged since being charged with the current offences. The appellant's parents were in deteriorating health. The appellant had one younger brother, with whom he has had no relationship since the offending against BB became apparent. The appellant had a good employment history, no criminal record and did not report illicit substance use or excessive alcohol consumption. He had some physical health conditions, which were of a kind that could be managed in prison. There were a number of factors which both judges accepted would make imprisonment more than usually difficult for the appellant which it is unnecessary to set out in these reasons.
There were four aspects of the findings as to the appellant's personal circumstances which the parties suggested involved different findings by Stevenson DCJ and Barbagallo DCJ.
First, with regard to the appellant's mental health, the State says that Stevenson DCJ made more favourable findings for the appellant than Barbagallo DCJ.[50]
[50] Respondent's submissions, pars 24 ‑ 25 (White AB 26).
Barbagallo DCJ accepted that the appellant was suffering from post‑traumatic stress disorder, depression and anxiety at the time of the offending. However, her Honour was not satisfied that these conditions contributed in any meaningful way to the commission of the offences, which was motivated by the appellant's sexual interest in young males.[51] Barbagallo DCJ was unable to form any concluded view about the appellant's claim of suffering from 'dissociative amnesia' and long‑term memory loss.[52] Her Honour noted that the appellant's claimed decline in cognitive and physical functioning at the time of sentence was inconsistent with the tasks he undertook at a residential facility at which he was residing at the time of sentence.[53] In making those findings, Barbagallo DCJ was critical of a report of a psychologist on which the appellant relied.
[51] Trial ts 981 - 982, 984.
[52] Trial ts 979 - 981, 984 - 985.
[53] Trial ts 986.
Stevenson DCJ declined to make any finding about the appellant's claimed dissociative amnesia.[54] His Honour did take into account the appellant's other mental health issues described in the relevant psychologist's report. However, he did not accept that those issues were causative of the offending.[55]
[54] Trial ts 566 - 567.
[55] Trial ts 569.
Secondly, the appellant points to the finding of Stevenson DCJ that he was not satisfied that there was any genuine remorse,[56] and compares that with Barbagallo DCJ's finding that the appellant's remorse was limited.[57] The preceding observations of Barbagallo DCJ indicated that she did not regard remorse as a significant mitigating factor.[58]
[56] Appeal ts 28; trial ts 569.
[57] Appeal ts 28; trial ts 989.
[58] See trial ts 988 - 989.
Thirdly, the appellant says that he had been on restrictive bail conditions for longer at the time of sentencing by Barbagallo DCJ.[59] Barbagallo DCJ took the fact that the appellant had been on restrictive bail conditions into account 'in a general way' in the appellant's favour.[60]
[59] Appellant's submissions, par 25 (White AB 16).
[60] Trial ts 989.
Fourthly, the appellant says that Barbagallo DCJ took into account the fact that the delivery of medication to the appellant after the first sentences were imposed was unsatisfactory.[61]
[61] Appellant's submissions, par 25 (White AB 16); trial ts 990.
Sentencing judge's approach
Towards the beginning of her sentencing remarks, Barbagallo DCJ identified the offences of which the appellant was convicted at his first trial and the total effective sentence of 10 years 8 months' imprisonment which he received at the first trial.[62] Her Honour did not expressly refer to the principle of restraint in her sentencing remarks.
[62] Trial ts 965.
Barbagallo DCJ identified the following aggravating features of the offending:[63]
1.the disparity in ages between the appellant and the complainants;
2.the breach of trust involved in the offending against each complainant, two of which were within the family unit;
3.the persistent nature of the offending against SB and JW, which included an element of grooming and normalisation of conduct;
4.the appellant used the lack of resistance by the complainants, who did not consider that they were in a position to offer any resistance, to continue his offending;
5.the offending against all complainants was planned and premeditated;
6.the various sexual acts involved in the offending, including some of the most serious types of offending; and
7.the degrading and humiliating nature of the offending.
[63] Trial ts 994 ‑ 995.
Her Honour identified a number of mitigating factors arising from the appellant's personal circumstances, noted above.[64]
[64] Trial ts 989, 990.
Barbagallo DCJ found that there was no mitigation in the delay in charging the appellant because the delay in the matter coming to the attention of police was a direct result of statements made by the appellant to the complainants during the offending.[65]
[65] Trial ts 989.
Barbagallo DCJ reduced the sentences she would have otherwise imposed by 2% to reflect the guilty pleas. Her Honour acknowledged the lateness of the guilty pleas, commenting that the appellant only pleaded guilty on the fifth occasion that he was called upon to plead to the charges, which was after the complainants had already given evidence.[66]
[66] Trial ts 986 ‑ 988.
Barbagallo DCJ recognised that one of the primary factors in sentencing an individual for sexual offences against children is the need to protect vulnerable children from abuse, alongside punishment and personal and general deterrence. Her Honour found that a term of immediate imprisonment was the only appropriate sentencing option. To reflect the fact that there were three complainants and that the offending occurred on numerous occasions over 10.5 years, the judge made the orders for accumulation resulting in a total effective sentence of 10 years' imprisonment.[67] The individual sentences and manner in which the total effective sentence was structured are set out in the appendix to these reasons.
[67] Trial ts 994 ‑ 995, 997.
Differences between the sentences imposed by the sentencing judges
The sentences imposed by Stevenson DCJ after the first trial are also set out in the appendix to these reasons. Generally, the length of the individual sentences imposed by Barbagallo DCJ and Stevenson DCJ for the equivalent counts were the same. The exceptions were:
1.The individual sentences imposed by Barbagallo DCJ for counts 9, 20 and 23 of the new indictment were longer than those imposed by Stevenson DCJ for the equivalent charge.
2.The individual sentences imposed by Barbagallo DCJ for counts 15, 16 and 22 of the new indictment were shorter than those imposed by Stevenson DCJ for the equivalent charge.
3.While Barbagallo DCJ and Stevenson DCJ would otherwise have imposed the same individual sentence for counts 1 and 5, Stevenson DCJ reduced the sentence for the offence charged in count 1 for totality and Barbagallo DCJ reduced the sentence for the offence charged in count 5 for totality.
Both Barbagallo DCJ and Stevenson DCJ made the appellant eligible for parole. Both backdated the sentences they imposed to take account of time spent in custody prior to sentencing.[68]
[68] Trial ts 573, 997.
In oral submissions, the appellant's argument was directed to the lack of sufficient difference between the total effective sentences imposed by Barbagallo DCJ and Stevenson DCJ. Ultimately the appellant did not rely on the differences in some of the individual sentences noted above at [129].[69] We agree that, in the circumstances of the present case, no infringement of the principle of restraint arises from the fact that three of the individual sentences constituting the shorter total effective sentence imposed by Barbagallo DCJ were longer than the individual sentences imposed for the equivalent charges at the original trial. That fact has no impact on the length of time which the appellant may be required to serve in prison or the date on which he may be eligible for release.
[69] Appeal ts 11 - 12.
The principle of restraint
The 'principle of restraint' was recently discussed by this court in XMB v The State of Western Australia.[70] The court in XMB adopted the following summary of the principle by Mazza JA (Martin CJ and McLure P agreeing) in Pollock v The State of Western Australia:[71]
Where a successful appellant is convicted after retrial, the judicial officer resentencing the offender must exercise his or her own sentencing judgment and discretion. In doing so, the sentencer must have regard to what is sometimes called 'the rule of restraint' (although it is in truth not a rigid rule) that ordinarily a successful appellant should not receive a heavier sentence than he or she received at the original trial. A sentencer may impose a heavier sentence if the facts disclosed at the retrial are different or the sentence originally imposed was manifestly inadequate. Where it is said that the sentence imposed at the original trial was manifestly inadequate, it may be relevant that the sentence imposed at that trial was the subject of a prosecution appeal which was 'derailed' by the successful appeal against conviction.
The policy underlying this approach is not difficult to see. If an offender ended up worse off after a successful appeal, the perception might arise that the offender was being punished for pursuing his right to appeal. Further, if sentences were commonly increased after a successful appeal, appeals would be stifled. This would not be in the public interest because the appellate process is an important means of exposing, remedying and preventing, in the future, errors in criminal proceedings.
On the other hand, if, at the retrial, facts came to light that were not before the court at first instance, which exposed the offending as more serious, there should be no reason why the original sentence should stand. Moreover, if the original sentence was demonstrated to be manifestly inadequate, it would be wrong to allow it to remain.
[70] XMB v The State of Western Australia [2023] WASCA 4 [57] - [64].
[71] Pollock v The State of Western Australia [2011] WASCA 133 [37] - [39].
The appellant's ground of appeal and submissions
The appellant's sole ground of appeal, as amended at the hearing of the appeal,[72] is expressed in the following terms:
The learned sentencing Judge erred at law in passing sentence upon the appellant in breach of the principle of restraint, having regard to:
a. The individual sentences and total effective sentence imposed following the first trial;
b. The absence of any finding by the learned sentencing Judge that the individual sentences, nor the total effective sentence, imposed following the first trial were manifestly inadequate;
c. The discontinuance of 8 counts upon the indictment at the second trial;
d. The pleas of guilty entered at the second trial to the remaining 16 counts;
e.The overall criminality involved in the 24 counts for which the appellant was originally sentenced, compared to the overall criminality involved in the 16 counts for which the appellant was subsequently sentenced;
f.The judge's failure to take the principle of restraint into account in the subsequent sentencing.
[72] Appeal ts 18 - 19.
The appellant's oral submissions, as developed by senior counsel at the hearing of the appeal, identified the appellant's essential complaint as follows. The appellant contends that the reduction in his overall sentence was inadequate to reflect the reduction in the appellant's overall criminality reflected in his conviction of 16 offences after pleas of guilty at the third trial as opposed to 24 offences of which he was convicted by the jury at the first trial.[73]
[73] Appeal ts 11 - 12.
Counsel accepted that the principle requires that an offender who is sentenced after a successful appeal should not receive a longer sentence for the policy reasons identified in Pollock.[74] Counsel also accepted that the principle was not a rigid principle and that there were exceptions such as where the initial sentence was manifestly inadequate or where there was a material change in circumstances between the earlier and later convictions.[75]
[74] Appeal ts 3 - 4.
[75] Appeal ts 4.
Counsel submitted that the second sentencing judge should have regard to the first sentence and should not impose a sentence which is higher than the first sentence.[76]
[76] Appeal ts 6 - 7.
Senior counsel for the appellant submitted that a person 'convicted of materially less criminality' or who is 'materially less culpable' should receive a materially lower sentence. The appellant contends that, in those circumstances, the total effective sentence imposed at retrial should not ordinarily exceed what would be regarded as a proportionate sentence for all of the counts of which the offender was convicted on retrial having regard to the total effective sentence received after the first trial.[77]
[77] Appeal ts 9 - 11.
Senior counsel for the appellant accepted that criminality was not determined merely by the number of counts of which he was convicted. However, counsel contended that a significant reduction in the number of counts would usually see a reduction in the overall sentence.[78]
[78] Appeal ts 10 - 11, 14 - 15.
The appellant also contended that Barbagallo DCJ was bound to take account of the principle of restraint and failed to do so.[79] Senior counsel submitted that, if there was to be a material departure from the sentence imposed at the first trial, there was a requirement for the sentencing judge at the subsequent trial to explain the reasons for that departure.[80]
[79] Appeal ts 17 - 18.
[80] Appeal ts 20 - 21.
Can restraint require a reduction in the original sentence?
We do not accept the appellant's submission that the principle of restraint requires a proportionate reduction in the total effective sentence imposed prior to a successful appeal when the offender is convicted at retrial of offences involving lower overall criminality.
As reflected in the passage from Pollock quoted above at [132], the task of a judge sentencing after a retrial is not to make an adjustment to the sentence imposed at the first trial for relevant factual changes. Rather, the sentencing judge on a retrial must exercise his or her own sentencing judgment and discretion. The sentence imposed at the first trial should be regarded as an upper limit of the sentence to be imposed following retrial,[81] rather than the reference by which the criminality of the offender is to be judged after retrial.
[81] McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 [23]; R v Gilmore (1979) 1 A Crim R 416, 419 - 421.
The last point is illustrated by the decision of the New South Wales Court of Criminal Appeal in R v MM.[82] The offender in that case was convicted on retrial of 11 out of the 14 counts of which he had been convicted at the original trial. The original sentence by Job DCJ was constituted by a series of concurrent sentences which resulted in a total effective sentence of 8 years' imprisonment and a non‑parole period of 6 years. On retrial, the same individual sentences were imposed by Coolahan DCJ for the offences of which the offender was convicted, with no change to the total effective sentence or non-parole period. On appeal, the focus of Levine J (Hidden and Howie JJ agreeing) was on the application of the totality principle to the second sentencing exercise:[83]
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 14 offences and the same sentence 'x' is imposed in relation to 11 of those 14 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.
In the instant application … there was no reason for any reduction. An examination of Coolahan DCJ's reasons, taking into account 'fairness', taking into account no suggestion of 'inadequacy' in relation to Job DCJ'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.
[82] R v MM [2002] NSWCCA 431; (2002) 135 A Crim R 216.
[83] R v MM [32] - [33].
Howie J added the following observations, with which we agree, as to the application of the principle of restraint to the situation presented to the court in R v MM:[84]
I find a substantial degree of artificiality in considering the sentence imposed by Coolahan DCJ to be an increase in the sentence imposed by Job DCJ. Coolahan DCJ imposed the sentence he believed was appropriate and was not prepared to reduce the sentence simply in recognition that Job DCJ imposed the same sentence for more offences.
Further, I do not understand how the policy considerations behind the general approach to sentencing after a retrial that are referred to in R v Gilmore (1979) 1 A Crim R 416 apply to the situation before Coolahan DCJ. How could a convicted person be deterred from seeking to appeal because the same sentence was imposed after retrial 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? …
I have indicated that in my view the appropriate task is to consider the exercise of the discretion by Coolahan DCJ and not to compare and contrast the sentence imposed by his Honour with that imposed by Job DCJ in order to determine whether any error occurred.
[84] R v MM [41] - [43].
The approach of the court in R v MM is consistent with that taken by the High Court in McL v The Queen, where the court upheld a decision by the Victorian Court of Appeal to increase individual sentences for offences of which the offender in that case remained convicted after the court had set aside convictions for some offences. The result of that exercise was that the original total effective sentence was unchanged. McL v The Queen may be distinguishable in that the original sentences in that case had been reduced for totality and were found to be manifestly inadequate. However, the decision in McL v The Queen does illustrate that the principle of restraint does not always require that a reduction in the number of offences of which an offender is convicted must lead to a reduction in the total effective sentence.
A similar approach was adopted by the Court of Criminal Appeal for South Australia in R v J, SM.[85] In that case, the offender had initially been sentenced to 12 years' imprisonment with a non-parole period of 6 years for various sexual offences. After a successful appeal, he was acquitted of two counts on retrial and was sentenced to imprisonment for 9 years 1 month with a non‑parole period of 4 years 1 month for the offences of which he was convicted on retrial. The offender appealed against the sentence imposed at retrial on the basis, in part, that the sentencing judge did not pay sufficient regard to the fact that two offences were not established at the retrial. As to that argument, the court (Sulan, Peek and Nicholson JJ) observed:[86]
We are strongly inclined to the view that the first sentence was not manifestly excessive. Nevertheless, it is unnecessary to form a concluded view about this. The first sentence is not material to the sentencing exercise undertaken by the Judge following the second trial other than as, perhaps, identifying an upper limit which should not be exceeded by any subsequent sentence (R v Baltensperger[2006] SASC 246; (2006) 96 SASR 34).
The sentencing exercise under consideration was to be attended to by the Judge afresh based on the second trial evidence and jury verdicts and the other sentencing materials placed before the Judge on the second sentencing occasion. The Judge was not entitled to have regard to the evidence in, and jury verdicts obtained following, the first trial. There is no reason to doubt that this was the approach adopted by the Judge. It follows that no assistance is to be had by comparing the first head sentence with the second head sentence and enquiring whether a sufficient reduction was allowed following the removal of the two additional offences involving penile-vaginal sexual intercourse.
The real question before the Court is whether or not the sentence imposed on the second occasion is to be seen as manifestly excessive.
(emphasis added)
[85] R v J, SM [2015] SASCFC 185.
[86] R v J, SM [11] - [13].
A different approach appears to have been taken in the subsequent decision of the South Australian Court of Criminal Appeal in Warne v The Queen.[87] In that case, an offender convicted of a number of offences received an initial sentence of 4 years 5 months' imprisonment with a non‑parole period of 3 years. On appeal, one of the convictions was set aside. A process of resentencing following the appeal was undertaken by another judge, who imposed a sentence of 4 years 9 months' imprisonment with a non‑parole period of 3 years 4 months. We note that this longer second sentence would appear to clearly infringe the principle of restraint. However, Hughes J (Peek and Stanley JJ agreeing) regarded it as necessary for the judge undertaking the second sentencing exercise to first have regard to the original sentence and only upon concluding that there is good reason to depart from it, sentence in a different manner.[88] Her Honour considered that the count on which the conviction was quashed, viewed in isolation, would attract a penalty in the vicinity of 4 ‑ 6 months' imprisonment. She imposed a sentence that was lower, to that extent, than the original sentence.[89]
[87] Warne v The Queen [2020] SASCFC 124.
[88] Warne [41].
[89] Warne [58] - [59].
The decision in Warne supports the appellant's submissions in the present case. However, we would not follow the approach apparently taken in Warneto the extent that it would require sentencing after a successful appeal to proceed by reference to the extent of reduction of an original sentence required by the conviction of a lesser number of offences. That approach seems to be to be inconsistent with the earlier proper approach taken by the same court in R v J, SM and with the rationale behind the principle of restraint as explained in this State and New South Wales.[90]
[90] Pollock [37] - [39]; Gilmore (419 - 420), adopted in McL v The Queen [23], [72].
In Armstrong v The Queen,[91] Bathurst CJ (Price and Beech‑Jones JJ agreeing) noted that the application of what is often referred to in New South Wales as the 'ceiling principle' is relatively straightforward when the second sentence is for the same offence as that for which the offender was originally sentenced. However, as Armstrong and the cases there discussed illustrate, complexity can arise in a variety of circumstances such as where the convictions at the original trial and retrial are for different offences, or where orders are made for accumulation with existing sentences. As Beech‑Jones J observed in the same case,[92] the proper application of the ceiling principle 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.
[91] Armstrong v The Queen [2015] NSWCCA 273 [46].
[92] Armstrong [66], cited with apparent approval in Chia v The Queen [2023] NSWCCA 63 [41].
The wide variety of circumstances in which the principle of restraint is to be applied means that no universal general rule can be stated as to how the principle should be applied. In general terms, it may be said that, in the absence of countervailing considerations, an offender should not be worse off - either in respect of the maximum or minimum time to be spent in custody - because he or she has successfully appealed against his or her original convictions. In our view, in cases where sentences for multiple offences are involved, the proper application of the principle will, at least ordinarily, focus on the practical impact of the sentences on the offender.
In our view, the principle of restraint operates only as a ceiling or upper limit on the sentencing of an offender after a successful appeal. It ordinarily requires that the offender not be worse off by reason only of having instituted a successful appeal. In determining whether an offender is worse off, all of the components of the sentence and its interaction with other sentences may need to be considered. However, the principle does not require that an offender be better off to any particular extent by reason of having a conviction quashed. Nor does it require a sentencing judge to sentence an offender by reference to an earlier sentence.
A lower total effective sentence imposed after a successful appeal must, of course, comply with the first limb of the totality principle. That is, the total effective sentence imposed after a successful appeal must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[93] However, that assessment is made by reference to the overall criminality involved in the offences of which the offender has been convicted after a successful appeal rather than by comparison of the later and earlier total effective sentences.
[93] See Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
In the present case, the total effective sentence imposed on the appellant, and the time before the appellant is eligible for parole, is 8 months shorter than was the case under the original sentence. The appellant has gained a benefit from the success of his appeal against conviction, even if the extent of that benefit might not be as great as he may have hoped for. He is not worse off because of his successful conviction appeal. There can be no perception that the appellant is being punished for having instituted the appeal against conviction. There is no infringement of the principle of restraint in these circumstances.
Proportionality of the reduction in the appellant's total effective sentence
In any event, even if the appellant's submission that the principle of restraint could require a proportionate reduction in the original sentence were to be accepted, there was no breach of the principle in the present case. That is because even if (contrary to our view) the principle of restraint required a proportionate reduction of the total effective sentence imposed at the first trial, the reduction of 8 months represented a proportionate reduction in the circumstances of this case.
In the present case, there was no suggestion that the sentences imposed by Stevenson DCJ were manifestly inadequate.
The only significant difference between the criminality involved in the factual findings by the two sentencing judges to which the State points are the findings as to the appellant's mental health noted at [117] ‑ [119] above.[94] While those findings were cast in somewhat different terms, the mitigating effect of the respective findings does not appear to us to be materially different. Both judges found the appellant to suffer from mental health conditions which neither regarded as causative of the offending. Neither judge made any finding as to the appellant's claimed dissociative amnesia.
[94] Respondent's submissions, pars 24 ‑ 25 (White AB 26).
As noted at [120] above, neither judge found the appellant to demonstrate any significant remorse. While there may be some additional mitigation to be found in the matters referred to at [121] and [122] above, in our view those are matters of marginal weight.
In our view, the only potentially significant differences in the criminality found in the two sentencing exercises concern the appellant's guilty pleas at the third trial and the lesser number of counts of which he was convicted at the third trial.
As to the appellant's guilty pleas, Barbagallo DCJ allowed a discount of 2% for very late pleas of guilty under s 9AA of the Sentencing Act 1995 (WA) for the individual offences. Given that the pleas came after the complainants had given evidence, and on the third day of the appellant's third trial for those offences, that discount was appropriately very small. A 2% discount applied in relation to the longest individual sentence of 3 years' imprisonment imposed by Barbagallo DCJ is likely to represent a reduction of less than one month from the sentence that would have been imposed if the appellant had been found guilty after a plea of not guilty and there were no mitigating factors. Noting that s 9AA applies to individual sentences rather than the total effective sentence, if a 2% discount had been applied in relation to the total effective sentence of 10 years' imprisonment, it would likely represent a reduction of less than 3 months.
The comparative reduction in the overall criminality of the appellant's offending resulting from the discontinuance of counts 3 ‑ 4, 8, 12 ‑ 14, 19 and 24 of the new indictment is, in our view, limited. Generally, the conduct the subject of each of the discontinued counts formed part of the same incident as one or more counts of which the appellant was convicted. The only exception was the separate incident that was the subject of count 12 on the new indictment, described at [96] above. Barbagallo DCJ found that the conduct the subject of counts 3 ‑ 4, 8, 13 ‑ 14, 19 and 24 occurred and formed part of the context in which the criminality involved in the offences of which the appellant was convicted at the third trial was to be assessed. The conduct the subject of all discontinued charges was generally similar in nature to, and was no more serious than, other conduct of which the appellant was convicted. The discontinued charges concerned conduct directed to the same complainants as conduct of which the appellant was convicted.
In our view, the reduction in overall criminality involved in the offences for which the appellant was sentenced by Barbagallo DCJ, as compared to that involved in the offences for which he was sentenced by Stevenson DCJ, is properly reflected in the 8‑month reduction in the total effective sentence. That is, in all the circumstances of this case, an 8‑month reduction was proportionate to the reduced overall criminality involved in the offences of which the appellant was convicted at the third trial as compared to the first trial. The appellant's appeal would fail even if (contrary to our view) the principle of restraint required Barbagallo DCJ to make a proportionate reduction of the total effective sentence imposed at the first trial.
Barbagallo DCJ's sentencing remarks
We are not satisfied that there was any occasion for Barbagallo DCJ to explain why the sentences which her Honour imposed were consistent with the principle of restraint. The total effective sentence imposed by Barbagallo DCJ was less severe than that imposed by Stevenson DCJ. To any extent that the proportionality of the reduction might be relevant, the 8‑month reduction was proportionate to the reduced overall criminality involved in the offences of which the appellant was convicted at the third trial as compared to the first trial. As the sentence imposed by Barbagallo DCJ did not constitute a material departure from the sentence imposed at the first trial, there was no requirement for her Honour to explain the reasons for such a departure.
Orders
This court has not previously considered the application of the principle of restraint where the offender is sentenced for a lesser number of offences after retrial. There is some inconsistency in authorities from other States. Having regard to these matters, we would grant leave to appeal. However, for the reasons explained above, the appeal should be dismissed. The formal orders should be:
1.Leave to appeal is granted on the sole ground of appeal.
2.The appeal is dismissed.
Appendix: Sentences imposed by Barbagallo DCJ and originally imposed by Stevenson DCJ
(Green highlight = sentence imposed is less than original sentence ignoring totality adjustments
Red highlight = sentence imposed is greater than original sentence ignoring totality adjustments
Blue highlight = individual sentence reduced for totality)
| Count | Offence | Sentence | Accumulation | Original count | Original sentence | Original Accumulation |
| Offending against SB | ||||||
| 1 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by procuring SB to touch his penis (s 321(4) of the Code) | 18 months | Concurrent | 1 | 8 months (reduced from 18 months for totality) | Cumulative |
| 2 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by touching SB's penis (s 321(4) of the Code) | 18 months | Concurrent | 2 | 18 months | Concurrent |
| 3 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by touching SB's penis (s 321(4) of the Code) | Discontinued | 3 | 18 months | Concurrent | |
| 4 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by procuring SB to touch his penis (s 321(4) of the Code) | Discontinued | 4 | 18 months | Concurrent | |
| 5 | Sexual penetration of a child of or over the age of 13 years and under the age of 16 years by engaging in fellatio with SB (s 321(2) of the Code) | 2 years (reduced from 3 years for totality) | Cumulative | 5 | 3 years | Concurrent |
| 6 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by touching SB's penis (s 321(4) of the Code) | 18 months | Concurrent | 6 | 18 months | Concurrent |
| 7 | Sexual penetration of a child of or over the age of 13 years and under the age of 16 years by introducing his penis into SB's mouth (s 321(2) of the Code) | 3 years | Head sentence | 7 | 3 years | Concurrent |
| 8 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by procuring SB to touch his penis (s 321(4) of the Code) | Discontinued | 8 | 18 months | Concurrent | |
| 9 | Attempted sexual penetration of a child of or over the age of 13 years and under the age of 16 years by attempting to penetrate SB's anus with his penis (s 321(2) of the Code) | 2 years | Concurrent | 9 | 18 months | Concurrent |
| 10 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by procuring SB to touch his penis (s 321(4) of the Code) | 18 months | Concurrent | 10 | 18 months | Concurrent |
| 11 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by touching SB's penis (s 321(4) of the Code) | 18 months | Concurrent | 11 | 18 months | Concurrent |
| 12 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by procuring SB to touch his penis (s 321(4) of the Code) | Discontinued | 12 | 18 months | Concurrent | |
| 13 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by procuring SB to touch his penis (s 321(4) of the Code) | Discontinued | 13 | 18 months | Concurrent | |
| 14 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by touching SB's penis (s 321(4) of the Code) | Discontinued | 14 | 18 months | Concurrent | |
| Sexually penetrated a child of or over the age of 13 years and under the age of 16 years by engaging in fellatio with SB (s 321(2) of the Code) | Acquitted at first trial | 15 | Acquitted at first trial | |||
| 15 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years by touching his penis against SB's penis (s 321(4) of the Code) | 18 months | Concurrent | 16 | 20 months | Concurrent |
| 16 | Sexual penetration of a child of or over the age of 13 years and under the age of 16 years by manipulating SB's penis so as to cause penetration of the appellant's anus (s 321(2) of the Code) | 2 years 6 months | Concurrent | 17 | 3 years 6 months | Head sentence |
| Offending against JW | ||||||
| 17 | Indecent dealing with a child under the age of 13 years by touching JW's penis (s 320(4) of the Code) | 2 years | Concurrent | 21 | 2 years | Cumulative |
| 18 | Indecent dealing with a child under the age of 13 years by touching JW's penis (s 320(4) of the Code) | 2 years | Concurrent | 22 | 2 years | Concurrent |
| 19 | Indecent dealing with a child under the age of 13 years by touching JW's perineum (s 320(4) of the Code) | Discontinued | 23 | 2 years | Concurrent | |
| 20 | Attempted sexual penetration of a child under the age of 13 years by attempting to engage in fellatio with JW (s 320(2) of the Code) | 3 years | Cumulative | 24 | 2 years | Concurrent |
| 21 | Indecent dealing with a child under the age of 13 years by touching JW's penis (s 320(4) of the Code) | 2 years | Concurrent | 25 | 2 years | Cumulative |
| Offending against BB | ||||||
| 22 | Aggravated (family and domestic relationship) indecent assault of BB by touching his penis against BB's penis (s 324(1) of the Code) | 2 years | Cumulative | 18 | 2 years 6 months | Cumulative |
| 23 | Aggravated (family and domestic relationship) indecent assault of BB by placing BB's hand on his penis (s 324(1) of the Code) | 2 years | Concurrent | 19 | 18 months | Concurrent |
| 24 | Aggravated (family and domestic relationship) indecent assault of BB by touching his penis (s 324(1) of the Code) | Discontinued | 20 | 18 months | Concurrent | |
| Total effective sentence | 10 years | 10 years 8 months | ||||
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
7 SEPTEMBER 2023
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