Heath v R

The applicant, Heath, appealed against his sentence for market misconduct offences, arguing that the sentencing judge erred in rejecting his evidence regarding his lack of knowledge of the criminality of his actions. The Court of Appeal in Victoria was tasked with determining whether the judge's rejection of the applicant's evidence constituted an error and, if so, whether it led to a denial of procedural fairness. The court also needed to decide whether the judge misapprehended the seriousness of the offending and whether the appeal court should re-exercise the sentencing discretion.

The court found that the sentencing judge erred in rejecting the applicant's evidence about his lack of knowledge, as it was unchallenged. This error impacted the judge's assessment of the objective seriousness of the offence. The court held that the applicant was denied procedural fairness because the judge failed to consider the unchallenged evidence about the extent of the impact of the offending on the market. Furthermore, the court concluded that the judge misapprehended the seriousness of the offending due to the unchallenged evidence.

Given that both error and denial of procedural fairness were established, the court considered the appropriate course of action. The court found that remittal of the proceedings would defeat the object of the appeal. Consequently, the court re-exercised its sentencing discretion and substituted a new sentence for the one imposed by the trial judge. The new sentence reflected the appropriate consideration of the applicant's evidence and the objective seriousness of the offending.