GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
R H McL APPELLANT
AND
THE QUEEN RESPONDENT
R H McL v The Queen [2000] HCA 46 31 August 2000 M95/1999
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation:
P F Tehan QC with C B Boyce for the appellant (instructed by Leanne Warren & Associates)
W H Morgan-Payler QC with C J Ryan for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
R H McL v The Queen
Sentencing – Power of Court of Appeal to re-sentence on remaining convictions after quashing some convictions – Counts properly joined – No appeal against sentence by either Crown or appellant – Principles of proportionality and totality – Whether Court of Appeal had power to increase the sentences of the appellant on the remaining convictions – Whether Court of Appeal gave adequate reasons for increase in sentence – Whether substituted sentence ordinarily subject to ceiling on total punishment so appellant not exposed to risk of increased punishment following a successful appeal.
Words and phrases – "totality principle", "ceiling principle".
GLEESON CJ, GAUDRON AND CALLINAN JJ. The principal issue in this appeal concerns the meaning and application of s 569(1) of the Crimes Act 1958 (Vic), a provision which has counterparts in other Australian jurisdictions, and which gives power to the Court of Appeal in a criminal appeal, in certain circumstances, to re-sentence an appellant who has been convicted of multiple offences and who appeals successfully against some of his convictions. There is a subsidiary issue as to whether, in the present case, there was a failure by the Court of Appeal to comply with the requirements of procedural fairness.
The offences and sentences
In August 1997, following a trial before Judge Harbison and a jury, in the County Court at Melbourne, the appellant was convicted of a number of offences against his two step-daughters, A and B. The offences against A occurred over a period between 1988 and 1996. She was aged from 11 to 19 over the period. The victim B was aged from 11 to 15 over the period of the offences against her. The appellant was convicted of eight offences of incest, four offences of causing A to take part in an act of prostitution, one offence of rape, two offences of gross indecency, and one offence of indecent assault.
The maximum penalty for incest was imprisonment for 20 years; the maximum for rape was (in the circumstances) treated by the sentencing judge as being 10 years; the maximum for causing a child to take part in an act of prostitution was 7 years; the maximum for indecent assault was 5 years; the maximum for an act of gross indecency was 3 years.
The counts…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R H McL v The Queen [2000] HCA 46
Case
[2000] HCA 46
Decision Date
CaseChat Overview and Summary
The case of R H McL v The Queen concerned an appeal to the Court of Appeal of Victoria by the appellant, who had been convicted of various sexual offences against his two step-daughters. The appellant was found guilty of multiple counts of incest, gross indecency, indecent assault, and causing a child to take part in prostitution. Following his convictions, the appellant appealed against them and sought leave to appeal against his sentence, but later withdrew the sentence appeal.
The legal issues before the Court of Appeal included whether it possessed the power to re-sentence the appellant on the remaining convictions after quashing some of them, and whether the substituted sentence should be subject to a ceiling to prevent an increase in punishment following a successful appeal. The Court was also required to consider the principles of proportionality and totality in sentencing.
The Court of Appeal reasoned that it was entitled to increase the remaining sentences because they were imposed for offences that formed part of a continuing course of criminal conduct. The original sentences had been compressed by the trial judge to avoid exceeding the appropriate punishment for the overall criminal conduct, resulting in individual sentences that were manifestly inadequate. The Court applied the principle of totality, as established in cases like *Thomas* and *Mill*, which requires a review of the aggregate sentence to ensure it is just and appropriate. The Court concluded that the individual sentences and the total effective sentence for the remaining convictions were manifestly inadequate and that it would have been an error to leave them standing.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The Court of Appeal was entitled to increase the remaining sentences because they were imposed for offences which were part of a continuing course of criminal conduct by the appellant and those individual sentences did not reflect the appropriate punishment for the offences for which they were imposed. That was because Judge Harbison had compressed the individual sentences to ensure that their totality did not reflect more than proper punishment for the course of the criminal conduct. An example of the compressed nature of the sentences is shown by the sentence for rape for which the appellant received a sentence of only 18 months. Given the long course and the nature of the appellant's criminality, it would have been an error on the part of the Court of Appeal to have left the remaining sentences standing, sentences which individually and collectively were then manifestly inadequate to reflect the appellant's criminality. Facts and procedural history The appellant was found guilty by a jury of committing various sexual offences against his two step-daughters, "CJM" and "KMM". They were the daughters of the appellant's wife from her previous marriage. All the offences of which the appellant was convicted were committed in the family home. They commenced in 1988 and continued until August 1996. Against CJM, the appellant was found guilty of:(a) five counts of incest (counts 3, 4, 10, 20 and 24);(b) one count of gross indecency (count 8);(c) one count of indecent assault (count 9); and(d)four counts of causing a child to take part in prostitution (counts 12, 16, 18 and 19).Against KMM, the appellant was found guilty of:(a) one count of gross indecency (count 2);(b) three counts of incest (counts 5, 11 and 23); and(c) one count of rape (count 6).Sentences imposed at first instance Judge Harbison sentenced the appellant to the terms of imprisonment as set out in the table below. Her Honour directed that the sentences on counts 2 and 3, counts 3 and 4, counts 8 and 9, counts 10 and 11, and counts 18, 19 and 20 be served concurrently. All other sentences were to be served cumulatively. The total effective sentence imposed by her Honour was 12 years. Her Honour fixed a non-parole period of 10 years. The changes to those sentences by the Court of Appeal are also set out in the table. The appellant appealed against his convictions on all counts and applied for leave to appeal against sentence on all counts. However, he sought, and was given, leave to withdraw the application for leave to appeal against the sentences. The Court of Appeal[25] (Phillips CJ, Batt and Kenny JJA) allowed his appeal in respect of the convictions on counts 2, 5, 6 and 23 because of a misdirection by Judge Harbison about the use to which the jury could put the evidence of a sexual relationship between the appellant and CJM in determining the appellant’s guilt on the counts relating to KMM. Those convictions were quashed. The Court of Appeal ordered a new trial in respect of them. Otherwise the appeal was dismissed.[25]R v R H McL [1999] 1 VR 746.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GAUDRON AND CALLINAN JJ
HUGH, GUMMOW AND HAYNE JJ
The Court of Appeal, a few days later, notified counsel that the matter would be re-listed for further argument as to the possible application of s 569(1). On 21 September 1998 the Court re-convened, and heard submissions from counsel for the parties as to its powers under s 569, and as to the course it should take in the light of those powers.The decision of the Court of Appeal[1][1]R v R H McL [1999] 1 VR 746. The application for leave to appeal against the convictions was directed to all counts on which the appellant was convicted. Only one argument was successful. It concerned a misdirection given by the trial judge about the use the jury could make of certain evidence in relation to the alleged offences against the victim B. There were five such alleged offences. The misdirection affected four of them (those the subject of counts 2, 5, 6 and 23). It did not affect the other count involving B, count 11 (incest). The leading judgment was written by Batt JA, with whom Phillips CJ and Kenny JA agreed. The Court of Appeal decided to quash the convictions on counts 2, 5, 6 and 23 and to order a new trial on those counts. The remaining convictions stood. Having dealt with the matter of the convictions in his reasons, Batt JA turned to the question of sentence. He pointed out[2] that the effect of quashing the four convictions, if no further order were made, would be to leave a total effective sentence of 8½ years, with a non-parole period of 10 years. It was obvious that there was a need to alter the non-parole period, and it was agreed that s 569(1) conferred power to do that[3]. The area of contention concerned the head sentence.[2][1999] 1 VR 746 at 774.[3][1999] 1 VR 746 at 775. For reasons which he explained, Batt JA concluded that the individual sentences, and the total effective sentence of 8½ years, for the convictions which stood, were manifestly inadequate. That conclusion was well open as a matter of discretionary judgment, and no attempt was made in this Court to suggest otherwise, or to suggest that there was any error in the reasoning by which Batt JA reached that conclusion. Indeed, the conclusion was almost inevitable because of the way the original sentences had been structured. The principle of totality which Judge Harbison applied is well recognised. It was stated in Thomas, Principles of Sentencing[4], in a passage quoted with approval by this Court in Mill v The Queen[5] in the following terms:"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'."[4]2nd ed (1979) at 56.[5](1988) 166 CLR 59 at 63. In Mill[6] this Court said:"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."[6](1988) 166 CLR 59 at 63.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GAUDRON AND CALLINAN JJ,
HUGH, GUMMOW AND HAYNE JJ