R v Baltensperger - [2006] SASC 246

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BALTENSPERGER
[2006] SASC 246
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Vanstone and The Honourable Justice White)
18 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
Appellant convicted of 5 counts of rape upon re-trial - Appeal against conviction and application for leave to appeal against conviction - Sympathy card from jury to prosecutor - Whether refusal to discharge jury amounted to miscarriage of justice - Where jury directed to disregard personal views and emotions - No reasonable apprehension of bias or lack of impartiality on part of jury demonstrated - Appeal dismissed.
Webb & Hay v The Queen (1994) 181 CLR 41, referred to.
R v Baltensperger (2004) 90 SASR 129; R v Musolino (2003) 86 SASR 37; Jones v National Coal Board [1957] 2 QB 55; R v Esposito (1998) 45 NSWLR 442; Rowland v Police (2001) 79 SASR 569, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal against sentence - Sentencing at re-trial - Where appellant previously convicted and sentenced for same offence - Whether, following re-trial, sentencing judge constrained by sentence imposed by first judge on original conviction - Whether sentencing judge erred in imposing heavier sentence than that imposed for original conviction - Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 354(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Appeal Act 1912 (NSW) s 7(1); Crimes Act 1958 (Vic) s 569(1), referred to.
R H McL v The Queen (2000) 203 CLR 452; R v Garrett (1978) 18 SASR 308; R v Gilmore (1979) 1 A Crim R 416; R v Martin (No 6) (2000) 206 LSJS 187; R v MM (2002) 135 A Crim R 216; R v Pahuja (No 2) (1989) 50 SASR 551; Williams v The Queen (No 2) [1982] WAR 281, discussed.
Campbell & Barker (No 2) v The Queen (1996) 70 FCR 1; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; Markarian v The Queen (2005) 215 ALR 213; Markovina v The Queen (1999) 73 ALJR 655; R v Bedford (1986) 5 NSWLR 711; R v Chen [1993] 2 VR 139; R v Merritt [2000] NSWCCA 365; R v Mitchell [2002] NSWCCA 380; R v Morse (1979) 23 SASR 98; R v Petersen [1999] 2 Qd R 85; R v Smith (2001) 80 SASR 396; R v Tait (1979) 46 FLR 386, considered.

R v BALTENSPERGER
[2006] SASC 246
Court of Criminal Appeal: Bleby, Vanstone and White JJ
BLEBY J:
Introduction

Following a trial in the District Court the appellant was found guilty of five counts of rape, all five counts relating to the same victim. He was sentenced to 12 years imprisonment with a non‑parole period of 9 years for all offences. On 4 November 2004 the Court of Criminal Appeal allowed an appeal against the convictions and ordered a re-trial.[1]
[1] R v Baltensperger (2004) 90 SASR 129; [2004] SASC 392.
Following the re-trial, the appellant was again convicted of the five counts of rape on 11 April 2005. The trial Judge imposed a sentence of 15 years imprisonment with a non‑parole period of 11 years.
The appellant applied for leave to appeal against the second conviction and sentence to a single Judge of this Court. He sought to argue some 15 grounds of appeal against the conviction. The Judge refused leave on all grounds but granted leave to appeal against the sentence.
The appellant then applied for leave to appeal against the conviction to the Court of Criminal Appeal. When that application came before the Court as presently constituted, the appellant abandoned grounds 7 to 13 inclusive and 15. The argument on the remaining grounds included full argument on those grounds. At the same time the Court as presently constituted heard the appeal against sentence.
Background facts
It is convenient to adopt the single Judge’s description of the background facts in the reasons for refusing leave to appeal.
All of the offences were alleged to have occurred on 21 April 2002. Four of the charges relate to vaginal sexual intercourse and one to a charge of oral sexual intercourse. The evidence of the complainant was that on 20 April 2002, she had been out drinking with friends at various night spots in Adelaide. She became intoxicated in the course of the evening and was eventually picked up in Hindmarsh Square by the appellant who was driving a panel van. The appellant then drove her to somewhere near Murray Bridge. The complainant said that she woke up in the back of the van and the appellant was kissing and touching her and when she tried to get out, he grabbed her hand and twisted her arm behind her back. She swore at the appellant and told him to let her out but she was unable to escape. Her underwear came off. The appellant then had vaginal sexual intercourse with her against her will. This represents Count 1 on the information.
The complainant said she remembered sitting on the side of the road. A passing motorist stopped and asked her if everything was okay. She was uncertain of what the appellant said but the man left. She kept telling the appellant to shut up and leave her alone. The appellant kept saying it was okay and he would take her home. He then moved the panel van up a little sidetrack and parked in a group of trees. The complainant said that she heard her mobile phone ringing. She did not answer but then got it out of her bag and pressed re-dial. When the appellant saw what she was doing he freaked out. He grabbed a gun from behind the seat. He got out of the car and opened it. The complainant said the gun “wasn’t like the whole gun, it was only like the metal part and he started like taking bullets out and checking if it was loaded”.
The complainant said that she then freaked out because the appellant was saying he did not know what to do because if he let her go she would go straight to the police. She then described herself as sitting in the driver’s seat and said that the appellant made her give him a “head job”. She thought she was going to get sick and said “Why don’t you just fuck me instead?”. The appellant wiped himself with her underwear and then told her to get out of the car. She said he still had the gun held at his side when an act of sexual intercourse on the bonnet of the car took place. The act of fellatio represented Count 2 on the information, and the incident on the bonnet Count 3.
They returned to the car and the appellant kept saying he did not know what he was going to do with her. The complainant continued to ask the appellant to let her go. A further act of vaginal sexual intercourse took place in the back of the car, which was Count 4 on the information. That was followed by another act of sexual intercourse on the bonnet, that being Count 5.
The complainant said the appellant then drove her to his home at Murray Bridge. He went inside but thereafter drove her back to Adelaide. He left the complainant at a suburban intersection at about 1 pm. The complainant rang her mother and in the conversation with her mentioned the gun. The complainant’s mother confirmed that she had received the phone call. She described the complainant as crying and upset and speaking quickly and saying “Mum, he is going to kill me, Mummy” and that she had mentioned the gun. The mother handed the telephone to her son who kept the complainant talking. The complainant’s brother described her as being in a state of hysteria, fast-talking, hard breathing and obviously upset. He said that she said she had woken up and someone was on top of her. The person had a gun loaded in front of her and made her undress.
Constable Elliott found the complainant at the phone box. He said he had trouble understanding her. She complained that she had been raped. The complainant also told him that the man had a .22 rifle without the wooden portion of it and that he had loaded it in her presence and threatened that he was going to kill her. The evidence of each of these three people was left to the jury as evidence of recent complaint.
The appellant’s home, sheds and panel van were later searched. The search of the premises led to the recovery of a balaclava and parts of a stolen .22 calibre semi-automatic rifle and magazine. The appellant was subsequently interviewed by Detective Alison Bee, but refused to answer any of her questions. A letter written by the appellant to Detective Bee was, however, tendered in evidence. That letter was written whilst the appellant was in custody and the appellant said it was simply to put his account of what happened.
The appellant gave evidence at the trial. He said that he was out for the night in Adelaide and when he was going to his car he saw the complainant sitting on the ground. He tried to help her and was allowing her to sleep in his car for a while. He decided to take her home to Murray Bridge so she could sleep and he would then take her home later. He admitted that he had sexual intercourse with her thereafter, but essentially his defence was that the complainant was a willing and consenting party to all of the sexual acts which took place.
The appellant denied having a gun in the car although he said the stock happened to be there, but that it was not used in any way. He said that when he returned home he did some work on his car, and he cleaned out the back of the van. The stock, which was kept as a memento or keepsake and normally was in the shed, was taken from the car and put in the house. It was in the wardrobe, up high, but still visible.
It will be necessary to refer in more detail to some of the facts relating to particular grounds of appeal.
Application for leave to appeal against conviction
Ground 1
This ground complains about the refusal of the trial Judge to discharge the jury after it was revealed that the jury had sent a sympathy card to prosecuting counsel, Mr Ian White, consequent upon the death of the prosecutor’s father.
The trial commenced on Monday, 14 March 2005. A number of objections to the admissibility of evidence were dealt with, including the taking of evidence on the voir dire. A jury was empanelled on Thursday, 17 March 2005. Save as to what was described as one minor matter, the prosecution closed its case on Wednesday, 30 March 2005 and the appellant commenced his evidence‑in‑chief. It was not completed on that day.
When the case resumed on Thursday, 31 March the prosecutor was absent. The trial Judge explained to the jury that the prosecutor’s father was gravely ill, that the Judge had excused the prosecutor for that day and the next, and that for that reason the case would be adjourned until the following Monday morning. The trial was adjourned accordingly.
The prosecutor’s father died on Saturday, 2 April. A death notice naming all the members of the family appeared in “The Advertiser” on Monday, 5 April. The appellant completed his evidence, including cross‑examination by the prosecutor, early in the afternoon of Tuesday, 5 April. The jury was then asked to return at 2 p.m. on Thursday, 7 April to enable further legal argument to take place and to give time for preparation of addresses by counsel.
It transpired that, at the end of the luncheon adjournment on Tuesday the Sheriff’s Officer in charge of the jury had been given a sealed envelope containing a card addressed to the prosecutor which she was asked to convey to him, and which she did when the court rose on Tuesday. The card was a commercially printed card containing the following handwritten message on the inside:
To Dear Ian,
With Deepest Sympathy
On The Loss of Your
Father
With The Greatest Respect
And Our Sincere
Condolences
The Jury Panel
Receipt of the card was disclosed to the Judge who reconvened the Court in the absence of the jury in the afternoon of Wednesday, 6 April, when counsel for the defence applied for the discharge of the jury.
The Judge heard sworn evidence from the Sheriff’s Officer. She said that on the morning of Tuesday, 5 April one of the jurors had mentioned something about the death in the course of conversation in the jury room before the Court commenced. There were about 10 jury members present.
On the Tuesday afternoon just before the Court was due to resume, a different member of the jury said to the Sheriff’s Officer, “We have a condolence card here for Mr Rice”. Rice was the surname of the trial Judge. The jury member then corrected herself and said, “Mr White”, and then said, “It’s nothing to do with the case, it’s just a condolence card”. The Sheriff’s Officer estimated that there were approximately 8 jurors present.
When the case resumed before the jury on the Thursday afternoon the Judge addressed them as follows:
Ladies and gentlemen, it’s come to my attention that on Tuesday, during the lunch break, a condolence card was handed to the Sheriff’s Officer to give to Mr White. As I expect you know already, his father died on Saturday. I’ve assumed that most, if not all of you agreed with the giving of that card. Might I say that it is quite understandable to feel that sympathy for the prosecutor as a person. What is essential is that that sympathy, that understandable sympathy does not translate to sympathy for the prosecution or against Mr Baltensperger. As I understand the situation, when the card was given to the Sheriff’s Officer, one of your number said ‘It had nothing to do with the case’, but that juror or number of you, just wanted to express your sympathy to Mr White.
The observation that it was nothing to do with the case, was quite correct. Your sympathy for Mr White’s personal situation and the giving of the card had nothing to do with the case, that was quite a proper observation.
What is also essential is that you decide this case on its merits and nothing else. I have said to you a number of times and I suspect ad nauseam actually, that you decide this case on what you see and hear in this the courtroom and nothing else. I direct you that you must disregard sympathy and other emotions, and not allow them to deflect you from a dispassionate and impartial consideration of the issues in the case, or from your duty to deliver verdicts according to the evidence.
So members of the jury, what I’m going to do is slightly unusual, but I think it should be done in this case is, I’m going to seek your assurances and indeed your individual assurances about two things. The first is that you will not communicate in any way with counsel or any witnesses, and that you confine your discussions about the case to your fellow jurors, that’s straightforward. Secondly, and I think probably more importantly, do I have your individual assurances that you will consider the evidence in this case both dispassionately and impartially, and deliver verdicts only based on that evidence?
The Judge then sought and obtained those assurance separately from each of the 12 members of the jury.
The jury retired, the Judge ruled that the trial would proceed. He then delivered a ruling the subject of ground 3 discussed below. There was a further brief discussion with counsel after the Judge was handed a note from the Sheriff’s Officer which read, “I was just told by a jury member that no‑one knew about the card except for the person who sent it”. That did not cause the Judge to alter his ruling.
Having adjourned for a short time before the jury returned, the Judge appears to have received some further information to the effect that some jurors who were outside having a smoke did not know of the card, but the non‑smokers were inside and did know. When the jury finally returned the Judge told them that he had acted on some misinformation about the card. He understood the division between smokers and non‑smokers. Some formal admissions were then recorded and the prosecutor began his address.
Although it was not part of the ground of appeal, counsel for the appellant criticised the Judge for disclosing to the jury the reason for the adjournment on Thursday, 31 March, namely the serious illness of the prosecutor’s father. Such criticism is unfounded. It was obvious to the jury that the prosecutor was not present. Some explanation was needed, otherwise the jury would have been quite mystified, and the concealment would have led to unnecessary and undesirable speculation on their part. It was time for frankness with the jury. The explanation given by the Judge was entirely proper.
The jury were told on many occasions during the course of the trial that they should decide the matter only according to the evidence before them and with an unbiased mind. In the general instruction, given to the entire jury panel each month, all jurors were told:
If during the trial any juror becomes aware that he or she is acquainted with any of the parties or a witness in a case, or feels unable to bring an unbiased unprejudiced judgment to bear on the case, he or she should bring the matter to the attention of the presiding judge.
Before the first adjournment on the day the jury was empanelled they were exhorted to avoid conversations with strangers in and around the Court and to decide the case on the evidence and nothing but the evidence. They were told that they would “need to disregard your emotions, your personal views about things, and decide the case on the evidence alone”. Besides the exhortation given to the jury at the time when the question of the card was raised, in the course of his summing‑up the Judge said:
I have emphasised to you a number of times, that you should decide this case upon what you see and hear in this court and nothing else. You should ignore any feelings of sympathy or emotional reactions. You must be clinical, dispassionate and assess the evidence with complete impartiality.
…
In arriving at verdicts, you are required by your duty to be guided only by the evidence given in this court. As I have said, your duty is to give verdicts according to the evidence and nothing else. You should not allow yourself to be deflected by sympathy or any other emotions, from a dispassionate consideration of the issues in this case, or from your duty to deliver verdicts according to the evidence. It is important that you should not be influenced by public opinion, or your feelings about any such matters.
The principle on which a court should act in relation to such an incident is clearly stated by the High Court in Webb & Hay v The Queen.[2] In that case a member of a jury hearing a trial for murder, on the morning of the day on which the Judge commenced his summing‑up, gave a bunch of flowers to a person at the Court, asking her to give the flowers to the mother of the victim. The juror was identified and apologised for her conduct. The Court held that the test to be applied for determining whether such an incident warrants the discharge of the juror or, in an appropriate case, the whole jury, is “whether the incident is such that, notwithstanding the proposed or actual warning of the trial Judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially”.[3] However, the Court, in dismissing the appeal by a majority, disagreed on the application of the test to the circumstances of that case.
[2] (1994) 181 CLR 41.
[3] Mason CJ and McHugh at 53, Brennan J at 57, Deane J at 75, Toohey J at 88.
Mason CJ and McHugh J considered that the conduct of the juror, viewed in isolation, did give rise to a reasonable apprehension of lack of impartiality. They said:[4]
The gesture of the juror may have been spontaneous, but a fair‑minded person might fairly apprehend that it revealed a state of mind that was not compatible with the unemotional and impartial consideration of the case. One can accept the juror’s own explanation of her gesture without derogating from the impact of that gesture on the minds of fair‑minded people. Her conduct was not a reaction to evidence that she had just heard. It occurred after the conclusion of the evidence and the addresses of two of the three counsel and after the jury had been warned about communicating with persons associated with the trial. The incident indicated that the juror felt strongly for the plight of the mother. Her sympathy, manifested as it was by disobedience of the judge’s warning, raised a serious question as to her ability to consider the evidence dispassionately and impartially.
[4] Ibid at 54-55.

Nevertheless, their Honours concluded that the incident when viewed in the context of what happened subsequently and the trial Judge’s directions did not give rise to a reasonable apprehension of bias. They concluded:[5]
Although, by her own admission, the juror was an impulsive person and had disobeyed an earlier warning not to communicate with persons associated with the case, we think that a fair‑minded and informed person would not apprehend bias on her part. While her sympathy for the deceased’s mother had caused her to act as she did, that sympathy had not manifested itself in any act of hostility towards the accused or of partiality to the Crown. Its significance lay in the fact that it indicated that the juror was or might be incapable of examining the evidence dispassionately and impartially. But the public ventilation of the incident, the juror’s apology, the recognition of the seriousness of what she had done, the general attentiveness and diligence of the juror, and the strength and detail of the judge’s second warning were countervailing factors of considerable strength. A fair‑minded person would assume that the juror would do her best to follow the judge’s direction to look at the evidence “coldly, dispassionately and above all, objectively and using [her] common sense”. When a fair‑minded observer also considered the opinion of the judge – the person on the spot – that the juror would be able to approach the issues dispassionately, we think that a fair-minded person would not have an apprehension of bias or lack of impartiality on the part of the juror. It follows that this ground of appeal fails.
[5] Ibid at 56.
Brennan J would have allowed the appeal. He considered that despite the Judge’s admonition, the strength of the juror’s sympathy for the mother of the victim “demonstrated that she had allowed herself to ‘be affected by feelings of sympathy’”.[6]
[6] Ibid at 61.
Deane J, who would also have allowed the appeal, considered that the juror’s conduct was a breach of the letter and spirit of the Judge’s earlier direction, and would be seen by a fair‑minded lay observer as demonstrating that the juror’s sympathy for and possible identification with the mother of the deceased “was such as to override the juror’s observance of clear instructions about her duty as a juror”.[7]
[7] Ibid at 78.
Toohey J said:[8]
There can be no reasonable apprehension of her actions being construed as bias against the appellants or either of them as distinct from sympathy for the mother of the deceased. While that sympathy was manifested in an unusual way, it remained to the fair‑minded observer a case of sympathy. Any dangers associated with it were readily capable of being avoided by the express direction the trial judge gave to the jury. And the juror’s own reaction, her apology and expression of concern, points to the likelihood that she, as well as the other jurors, would observe those directions.
[8] Ibid at 88.
Thus, four out of the five judges considered that the juror’s action in giving the flowers, without more, gave rise at least to a serious question as to her ability to act impartially. It was the view of the majority, however, that the need to discharge the jury was prevented by the juror’s subsequent conduct, the directions of the trial Judge and the trial Judge being satisfied that the juror concerned would apply herself dispassionately to her consideration of the evidence.
There is an immediate and obvious distinction between this case and Webb & Hay v The Queen. The expression of sympathy in Webb & Hay was to a victim of the crime for her situation as a result of the killing on which the jury was asked to sit in judgment. That in itself could well, as it did, give rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror concerned would not discharge her task impartially.
The expression of sympathy in this case, however, was not for a party or for a victim of the alleged crime but to prosecuting counsel, and not in respect of any event connected with the crime but for a totally unrelated event not even related to the conduct of the trial. One could not interpret the action of the juror or jurors concerned as being an act of sympathy for a victim or for the prosecution case. It related to the personal predicament of the prosecutor for reasons unconnected with the trial, with a contemporaneous acknowledgement by the person who handed over the card that it was nothing to do with the case. That puts it in a rather different category from that of the juror in Webb & Hay. It would not give rise to a reasonable apprehension by a fair‑minded and informed member of the public that the jury would not discharge its duty of impartiality in trying the case, notwithstanding some personal sympathy towards the prosecutor on the death of his father.
It might be suggested that the expression of sympathy, having come at the end of the cross‑examination of the appellant by prosecuting counsel in the two sitting days which immediately followed the death of his father, might in some way have been evoked by the strain under which he was working in continuing to conduct the trial. Even if that were so, it does not translate to a suggestion that the jury would be less than impartial in deciding the facts of the case. I repeat that it was the spontaneous remark of the juror in handing over the envelope containing the card that it had nothing to do with the case. Furthermore, the direction that the trial Judge then gave the jury and the assurances extracted from each one of them, coupled with the effect of the subsequent messages delivered through the Sheriff’s Officer, left the jury in no doubt about the seriousness of their responsibility. In the absence of any suggestion to the contrary, a court is entitled to assume that the jury will follow and will act on the trial Judge’s instructions.
Taking into account the reason for the expression of sympathy, the circumstances in which it arose, the subsequent directions of the trial Judge and the apparent realisation on the part of all jurors of their responsibility, it cannot be said that the incident, viewed as a whole, could give rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that members of the jury or some of them did not discharge their task impartially.
While leave to appeal on this ground should be granted, the appeal based on this ground should be dismissed.
Ground 2
On the morning of Monday, 21 March 2005 counsel for the appellant applied for a mis‑trial. On the previous weekend counsel for the appellant had searched the internet using Google and Yahoo search engines, and had found a reference to the appellant on a site known as “Mako”. It records details of convicted paedophile sex offenders. The information disclosed that the appellant was a 32 year old convicted rapist who had been sentenced in 2003 to 12 years gaol with a nine year non‑parole period. His victim was described as a 25 year old woman who was abducted and raped a number of times over a six hour period. That information plainly related to the result of the appellant’s first trial. The basis of the application was that the information was there for any member of the jury to access. There was no suggestion at any time that a member of the jury had in fact had access to that information. The Judge refused the application for a mistrial.
Before the first adjournment on the day on which the jury was empanelled, having warned the jury to avoid falling into conversation with strangers in and around the Court, the Judge reminded the jury of the need to decide the case on the evidence alone, in the course of which he said, “You should not involve yourself in any form of private investigation about the matter. Saying that is merely another way of emphasising that you decide the case on what you see and hear in this court and nothing else”. That was before the matter of the internet had been raised.
Nothing was said to the jury immediately after the matter had been raised. It is difficult to know what could have been said without immediately engaging the jury’s curiosity as to what might be on the internet.
On the afternoon of Tuesday, 22 March before the adjournment on that day the Judge again reminded the jury of their obligations in the following terms:
Can I remind you of a couple of other things? Discuss the case only with fellow jurors and not outsiders or members of the family and obviously decide the case, when it comes that time, on what you see and hear in this court and only that, and do not undertake any form of private investigation of the matter. You will be called upon eventually to decide the case on what you see and hear in this courtroom.
On Tuesday, 5 April, before adjourning the matter to the following Thursday, the Judge again reminded the jury of the importance of deciding the case only on what they had seen and heard in the Court.
As is almost inevitable on a re-trial, the jury became aware that there had been a previous trial. The Judge adverted to that in the course of his summing‑up. He directed the jury not to speculate about what had happened at a previous hearing and reminded them again that they were to decide the case upon what they had seen and heard in the Court, “not on fruitless speculation”.
The internet, access to it and the use of powerful search engines is now a commonplace feature of many people’s daily lives, including those selected for jury service. The use of the internet by jurors cannot be denied or policed. The criminal justice system has recognised that from time to time jurors may gain access to information concerning an accused person or the circumstances of the case before them other than by means of admissible evidence placed before the jury in the course of a trial. In the case of a re-trial, particularly the re-trial of a matter attracting some notoriety, members of the second jury may well be aware of or may readily gain access to details of the previous trial published in the media. Specific warnings not to make inquiries by means of the internet may well arouse curiosity on the part of jurors to find out what may exist.
All that can be done is to exhort juries to decide cases solely on the evidence before them, not to carry out any private investigations or experiments of their own and to put out of their minds any extraneous material of which they may become aware. That is not a process which is foreign to jurors or of which they are incapable. It is one which they frequently have to apply in different ways in joint trials, in trials involving multiple offences and in trials involving evidence of uncharged acts. As in the case of ground 1, in the absence of any particular incident coming to the notice of a trial Judge, the Court is entitled to assume that jurors will act according to the trial Judge’s instructions.
No relevant incident involving any member of the jury was brought to the notice of the trial Judge in this case. The directions given were adequate and appropriate. Even if a member of the jury did access the website, it would have been quite clear that the conviction, circumstances described and penalty related to the first trial of the appellant of which they were aware and in respect of which appropriate directions had been given.
This ground does not raise an arguable case. Leave to appeal on this ground should be refused.
Ground 3
In cross‑examination the complainant was asked questions relating to past occasions on which she had been drinking and had been in trouble with the police. She was cross-examined about an incident which had occurred on 1 February 2002, some 2½ months before the offence in question, at an event known as the Big Day Out at the Wayville Showgrounds. She agreed that she had been involved in an activity known as crowd surfing, that she was drunk and that police were called. She agreed that she had been asked to leave, that she had struggled with police and had been dragged from the ground after kicking and biting the finger of a police officer. She acknowledged having been substantially affected by liquor at that time. The one fact that the complainant denied was the proposition put to her in cross‑examination “that you told the police that time that you hadn’t been crowd surfing but you ‘had been trying to get away from a male who had shoved his cock in your face’”. She denied saying that to the police or that that had happened. In that context it was then put to her, and denied, that she had levelled allegations of sexual misconduct in this case to excuse her own behaviour.
Counsel for the appellant sought to call the police officer involved in the incident to contradict what the complainant had said. The Judge refused to allow the evidence to be led. The appellant seeks leave to appeal against that refusal.
The trial Judge rightly held that the issue went only to the witness’s credit and that evidence could not be called on what was purely a collateral issue.[9] There are exceptions to that rule where a witness denies that he or she has been convicted of a crime affecting the veracity of the witness, or where a witness denies having made a previous inconsistent statement relative to an issue in the proceedings.[10] However, the statement sought to be contradicted in this case had no bearing whatever on an issue in these proceedings.
[9] See R v Musolino (2003) 86 SASR 37 and the cases cited therein by Lander J at 51-56.
[10] See the authorities discussed by Lander J ibid at 54-56.
It was put that, as the defence case was that the complainant had lied about the appellant’s alleged sexual misconduct in order to excuse her own behaviour, this evidence provided relevant support for that theory. However, the two events were quite remote from each other. What may be said to have happened on an earlier occasion cannot generally be used in aid of proof of what may have happened on this occasion. If it were shown only that the complainant lied to police on the earlier occasion, it does not follow that her credit was impugned on this occasion, particularly when, on the first occasion it may be inferred that the complainant might have had a motive to lie to police in order to escape being charged herself with an offence. There was no suggestion on this occasion that she could have had any such motive.
The evidence proposed to be led went solely to a collateral issue and was not relevant to the present trial. This ground is not arguable and leave to appeal should be refused.
Ground 4
This ground alleges that the trial Judge erred in permitting the prosecution to adduce evidence of the complainant’s description of the firearm in conversations admissible as recent complaint. As pleaded, there is no substance in the ground, as the complainant’s reference to the gun in the course of her complaints was inextricably intertwined with the complaint which was admissible.
The argument for the appellant tended to suggest, however, that the evidence of discovery at the appellant’s premises of the stock of a gun similar to that described by the complainant should not have been admitted. Not only was that not a ground of appeal alleged, but it was obviously a highly relevant piece of circumstantial evidence bearing on the complainant’s evidence that the appellant was in possession of a rifle without the stock. There is no substance in this ground and leave to appeal should be refused.
Ground 5
This ground complains of the Judge’s cross‑examination of the appellant. It is convenient to be reminded of the relevant principles which should guide a trial Judge in asking questions of a witness. Denning LJ in Jones v National Coal Board[11] said:
The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes behind this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.
[11] [1957] 2 QB 55 at 64.
In R v Esposito[12] Wood CJ at CL said:
The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.
[12] (1998) 45 NSWLR 442 at 472. This and other cases are discussed by Perry J in Rowland v Police (2001) 79 SASR 569 at 576-577.
The first passage complained of occurs at T929-930. It is not clear from the transcript and there was no other evidence to suggest when questioning by the Judge ceased and cross-examination by the prosecutor resumed. Those questions which were obviously asked by the Judge did no more than clear up previous equivocal answers.
There was a longer passage which followed shortly thereafter at T930-931. Again, a reading of those questions makes it clear that the Judge was doing no more than clarifying previous answers and identifying a matter of concern as to the appellant’s manner of waking the complainant. Similar comments apply to the questions asked by the trial Judge at T934-935. Two questions were asked at T939 clearly by way of clarification. Another passage complained of was at T947 which was merely an intervention by the Judge asking the appellant to explain his previous answer.
The final passage occupies approximately six pages of transcript at the very end of the appellant’s cross-examination. It began with the preface, “If I can just clarify a few things …”. That is what the Judge then proceeded to do on several topics. The length of the passage is explained in part by the trial Judge assisting the appellant to understand what the complainant had said in a written statement which he said he had read and which was relevant to a question by the Judge as to the content of a letter the appellant had written to Detective Bee. The questioning was reasonably extensive and on a number of different topics but, as the Judge’s preface suggested, seeking clarification. As I read the questions they were not directed towards establishing a point that was adverse to the interests of the appellant. If anything, they were giving him an opportunity to clarify previous answers or inferences arising from his evidence which might have been adverse to him.
This ground does not raise an arguable case and leave to appeal should be refused.
Ground 6
This ground objects to the trial Judge’s failure to exclude a photograph of the appellant which was said to be unflattering and prejudicial to the appellant when identification was not an issue in the trial.
In the absence of the jury, counsel for the appellant had asked that the photograph be removed from the book of photographs proposed to be tendered. In the course of that submission counsel suggested that if it later became relevant, then so be it “but (the prosecutor will) glean from my cross-examination whether or not he will need to have the witness formally identify my client”.

The photograph remained in the book, and in evidence‑in‑chief the complainant, who gave evidence from a remote location by closed circuit television, was asked to identify the person alleged to have had sexual intercourse with her by reference to the photograph. The booklet of photographs was then tendered, including the photograph of the appellant.
At that stage the complainant had not been cross-examined and there had been no indication from counsel for the appellant that identity of the accused was not in issue. The photograph was properly admitted for a relevant purpose. It was the only way, in the circumstances, that the complainant could identify the appellant. The fact that it may have been unflattering of the appellant is neither here nor there. The jury were sitting opposite the appellant throughout the whole trial. They observed him giving evidence. They were well aware of what he looked like in a variety of different situations.
This ground has no substance and leave to appeal should be refused.
Ground 14
This ground objects to the admission into evidence of a conversation between the appellant and Senior Constable Shilton. The issue was resolved on a voir dire hearing before the jury was empanelled, at which both Senior Constable Shilton and the appellant gave evidence.
Before relating the content of the conversation it is necessary to explain the context in which it occurred. The appellant was arrested at about 7.40 a.m. on a roadside after the vehicle being driven by the appellant had been pulled over by police. Senior Constable Shilton was the arresting officer and, at the time of the arrest, gave the accused his rights, including informing him that while he remained in custody he was entitled to refrain from answering any questions. He was warned that anything he might say would be taken down and used in evidence. He acknowledged at the time that he understood that right and warning.
The appellant was interviewed by Detective Bee in the presence of Senior Constable Shilton at about 10.30 a.m. the same morning. During the course of that conversation the appellant acknowledged his arrest at about 7.40 a.m. and that he was advised of his rights. He acknowledged having been told that he could refrain from answering any questions. He was then again warned that anything he would say would be recorded and might be used in evidence. He said that he understood that. He then exercised his right by refraining from answering any further questions.
The appellant was then taken to the cell area where he was formally charged with the offences, and Senior Constable Shilton took the appellant to the fingerprint room for the purpose of taking his fingerprints. During the course of that exercise, as related by Senior Constable Shilton and not disputed by the appellant, the following conversation took place:
Mr Baltensperger said ‘This is what you get for trying to help someone.’
I said ‘I don’t know anything about it. I wasn’t there. It was only you and her.’
He said ‘I don’t know where this gun come from. I didn’t have a gun.’
I said ‘I don’t know what is being said.’
He said ‘If I had a gun don’t you think I would use it.’
I said ‘I don’t know.’
He said ‘If I had a gun there I probably would have used it.’
I said ‘Just because a gun is mentioned doesn’t mean it is automatically used.’
He said ‘Mmm’.
The evidence was sought to be led by the prosecutor as evidence of esoteric knowledge on the part of the appellant that a gun was involved, thus tending to confirm the evidence of the complainant. There was no suggestion that at the time of the conversation the appellant was aware of what the complainant had told her mother, her brother or the police. The conversation may well have been relevant and admissible on other grounds.
The conversation was volunteered by the appellant. It was not in response to any questions by Senior Constable Shilton. Senior Constable Shilton made no attempt to warn the appellant again of what he said could be used in evidence, and this was the substance of the complaint made by the appellant on the application for leave to appeal.
The Judge found that the exchange took place after the formal interview process. It took place in the fingerprint room where there was no recording equipment available. Although Senior Constable Shilton was involved in the arrest of the appellant, he was not the investigating officer, and he had no intention of engaging the accused in a conversation, let alone of asking the accused any questions or interviewing the accused. The response of Constable Shilton to the appellant’s remark was not designed to engage the appellant in any conversation or to draw any further remark from him. The Judge found that Senior Constable Shilton did not want to be involved and tried to disengage from the accused, but the accused kept talking.
Given the previous administration of the appellant’s rights on two occasions that morning, his reminder of them on another and indeed his exercise of the right to silence immediately before this conversation occurred, it cannot be suggested that the appellant was unfairly dealt with or that Senior Constable Shilton in any way abused his position as police officer to extract any unwanted admission from the appellant. There is no substance in this ground and leave to appeal must be refused.
Conclusion
Leave to appeal against conviction on ground 1 should be granted but leave to appeal against conviction should be refused on all other grounds. The appeal on ground 1 should be dismissed.
The appeal against sentence
The appellant complains that the sentence imposed was manifestly excessive and should not have exceeded the sentence imposed for precisely the same charges by the Judge who presided over the first trial. It is convenient to deal with the second point first.
In the course of his sentencing remarks the trial Judge said:
I accept that, ordinarily, I should not, in this situation, impose a sentence greater than that imposed on the first occasion, notwithstanding my own sentencing discretion. High Court authority, although not binding on me, but is highly persuasive, would suggest that I should not impose more as a matter of policy unless I think that the original sentence was manifestly inadequate. If that is the appropriate test, on my view of the evidence in this case, it is satisfied. I am not bound by the sentence of Judge Smith and exercise my own sentencing discretion.
Because there are apparently irreconcilable decisions of this Court and differing views expressed from time to time in other courts, it is necessary to review the various cases dealing with this topic.
The first court to consider the effect of an earlier sentence was this Court in R v Garrett.[13] A question was reserved to the Full Court as to whether, upon conviction on a re‑trial, the Judge 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”. In their joint judgment, Hogarth ACJ and White AJ said:[14]
In our view … the Judge who is called upon to sentence a prisoner after a re‑trial has a duty to do so according to what he regards at that time as proper in all the circumstances. Primarily, he must approach the case as one coming before him de novo. It would be wrong for him to regard himself as in any way bound by what had occurred at the previous trial, or limited in the exercise of what after all is a discretionary power, the determination of what is a proper sentence. Of course, it is proper for him to have regard to the opinion of the trial Judge at the first trial; but the facts which emerged before the courts at the two trials my have varied in some significant respect. Almost certainly they will have varied to some extent. Even if they have not varied to any significant extent, the trial Judge at the second trial must do what he himself thinks proper in all the circumstances; one of those circumstances being that he has the advantage of knowing what another Judge thought of the same or similar facts, that is to say the facts which emerged at the first trial. But in the end it is he, and he alone, who is responsible for deciding what is a proper sentence.
[13] (1978) 18 SASR 308.
[14] Ibid at 313.
Wells J proposed the following answer to the question:[15]
The Judge upon the re‑trial retains, unimpaired, the judicial discretion to impose a just sentence having regard to the circumtances 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.
[15] Ibid at 316.
There was no discussion in Garrett of the policy reasons which led the New South Wales Court of Criminal Appeal to a different conclusion in the following year in R v Gilmore.[16] Street CJ disagreed with the conclusion in Garrett. He said:[17]
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.
[16] (1979) 1 A Crim R 416.
[17] Ibid at 419.
Street CJ enunciated the policy reasons for so acting:[18]
The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill‑founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.
In the second place, the passing of a heavier sentence on a new trial 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. 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.
[18] Ibid at 419-420.
Street CJ concluded:[19]
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; in the exercise of such discretion the sentence on the first trial would have the relevance indicated in the passage I have quoted from Garrett.
[19] Ibid at 421.
Lusher J agreed with the Chief Justice. Begg J dissented and agreed with this Court’s approach in Garrett, holding that the Judge in the second trial was under a positive obligation to acquaint himself or herself with the facts and circumstances on which the first sentence was based, of the first Judge’s view of the facts and of the reasons for the first sentence in order to assist in arriving at a proper sentence on the second trial, but that the second Judge remained free to exercise the discretion, whether it be for a greater or lesser sentence than the first.
The next court to consider the matter was the Supreme Court of Western Australia in Williams v The Queen (No 2).[20] In that case the appellant had been convicted of false pretences and fined $1,000. He appealed against his conviction and the Crown appealed against the sentence. The appeal against conviction succeeded and a new trial was ordered. The appeal against sentence was formally discontinued. He was convicted again on the second trial and sentenced to 12 months imprisonment with a non‑parole period of six months. The appeal against sentence was dismissed.
[20] [1982] WAR 281.
Burt CJ said:[21]
The applicant’s central submission in support of his application was that in a case such as this the trial judge when sentencing following upon a conviction upon a re-trial is bound to impose upon the convicted person the same sentence as had been imposed following upon the first conviction. To do otherwise was in effect to exercise an appellate jurisdiction. No authority was cited to us in support of that absolute proposition and I am unable to accept it. Which is not, I think, to say as was said in R v Garrett (1978) 18 SASR 308 at 313, per Hogarth ACJ and White AJ, that: ‘The judge upon the re‑trial is in no way (emphasis mine) constrained in his imposition of a sentence by the sentence imposed by the judge on the original conviction’.
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. That principle is based upon policy …
[21] Ibid at 283-284.
Burt CJ then quoted the policy considerations enunciated by Street CJ in Gilmore cited above and continued:[22]
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. It would, I think, be wrong for him to say: ‘In my judgment the first sentence was altogether inadequate or inappropriate but nevertheless it was a sentence imposed and therefore I will impose it again’.
And when it comes to an appeal by the convicted person against the sentence of imprisonment imposed following upon his second conviction the general assertion that that sentence was ‘manifestly excessive’ (which is the ground here relied upon) is not established merely because the applicant was ordered to pay a fine following upon his first conviction.
Upon such an appeal this court must look at all the circumstances of the case. It will have regard to the sentence passed following upon the first conviction and it, too, will be conscious of the principle referred to by this court and acted upon in Leary v R, supra. When doing that it will be relevant to know whether the Crown appealed against the sentence passed following upon the first conviction. The Appeal Court may ask itself whether that sentence was one which would have survived an appeal by the Crown and in answering that question it will not overlook the vested interest, as it is sometimes described, which the applicant has in his liberty under the first sentence. In this way the applicant does not lose such advantage as he had as a respondent to the Crown’s appeal against his first sentence. But having done that, if this court is of the opinion that the first sentence was one which had it been ruled upon would have been set aside as being inadequate or inappropriate, and if it be of the opinion that the second sentence was both appropriate and in all other respects within the range of the discretion exercised by the sentencing judge then it is a sentence which this court should not and indeed cannot set aside.
[22] Ibid at 284.
Burt CJ then merely said that he agreed with the facts and the result arrived at by Wickham J. Wickham J was guided by the considerations stated by Burt CJ and merely concluded[23] that “having regard to the facts of the case, and notwithstanding the special considerations involved, I do not think that a different sentence, being more lenient than the sentence passed, should have been passed and I would dismiss the appeal”. Kennedy J agreed with the reasons of the Chief Justice and of Wickham J. It will be noted that no‑one expressed the view that the first sentence was manifestly inadequate.
[23] Ibid at 288.
Street CJ modified the views he had expressed in R v Gilmore[24] when he came to consider the matter again in R v Bedford.[25] He referred to the principle he had enunciated in Gilmore and said:[26]
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.
[24] (1979) 1 A Crim R 416.
[25] (1986) 5 NSWLR 711.
[26] Ibid at 713-714.
Slattery CJ at CL and Brownie J agreed.
The question again came before the Court of Criminal Appeal of this Court in R v Pahuja (No 2),[27] where White J said:[28]
A sentencing judge who is sentencing on a second occasion is not obliged to order the same sentence as that ordered by the first judge if he is convinced that the former sentence was manifestly excessive or manifestly inadequate. Apart from that, however, the second judge would have regard to and generally order the same sentence.
The Court of Criminal Appeal is not bound by either sentence once it becomes apparent that the sentence appealed from was manifestly excessive.
[27] (1989) 50 SASR 551.
[28] Ibid at 562.
Bollen J agreed with the reasons of White J. Both considered the second sentence manifestly excessive and imposed a sentence lower than that imposed by the first trial Judge. Prior J would have dismissed the appeal but did not address the question of the earlier lower sentence. None of the judges referred to R v Garrett or to any of the other cases mentioned above, but there is an obvious inconsistency between the decision in Garrett and the view of the majority in Pahuja (No 2).
The matter came before the Victorian Court of Criminal Appeal in R v Chen.[29] In the joint judgment,[30] the Court referred to Gilmore, Garrett, Williams and Bedford and agreed with the observations of Street CJ in Bedford[31] quoted above. The Court then quoted the passage from the judgment of Burt CJ in Williams quoted above but omitting the last two paragraphs and said that they agreed with those observations.
[29] [1993] 2 VR 139.
[30] Marks, Southwell and Harper JJ at 159.
[31] (1986) 5 NSWLR 711 at 713-714.

It is clear from the Court’s reliance on Bedford, and on the limited passage quoted from Williams, that a Victorian court will consider that a judge on the second trial is entitled to depart from the earlier sentence if the judge considers that the earlier sentence was inadequate or inappropriate and expresses reasons for doing so.
In R v Petersen[32] the Queensland Court of Appeal[33] noted the varying attitudes to the problem, and after reviewing the authorities concluded:[34]
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.
[32] [1999] 2 Qd R 85.
[33] Fitzgerald P, McPherson JA and Dowsett J.
[34] Ibid at 87.
There was passing consideration given to the question by the High Court in Markovina v The Queen.[35] The ground of appeal related to what was said to have been the failure on the part of the trial Judge and the Western Australian Court of Criminal Appeal to apply the decision in R v Williams,[36] and in particular “the discretionary considerations referred to at 283-284”. The Crown conceded that the Court of Criminal Appeal had erred in not holding that the trial Judge had made an error in failing to take Williams into account. In a brief judgment the High Court[37] said:
We accept the concession that the Crown has made. The respondent conceding error in the Court of Criminal Appeal and by the sentencing judge, the appeal should be allowed, the orders of the Court of Criminal Appeal set aside and in place thereof it should be ordered that the appeal to that Court be allowed and that the matter should be remitted to the Court of Criminal Appeal for it to consider whether some other sentence should be imposed.
[35] (1999) 73 ALJR 655.
[36] [1982] WAR 281.
[37] Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ.
Although the decision was based on a concession by the Crown without any detailed consideration of R v Williams, it is unlikely that the appeal would have been allowed if the Court considered that the discretionary considerations referred to were irrelevant or inappropriate.
In R v Martin (No 6)[38] the trial Judge was required to fix a non‑parole period upon the conviction at the third trial on one count of murder. Martin J reviewed the cases of Garrett, Gilmore, Bedford, Williams and Petersen. He did not mention Pahuja (No 2) and considered himself to be bound by Garrett. He continued:[39]
However, in my opinion there is considerable merit in an approach which requires the second sentencing judge not only to have regard to the sentence imposed on the first occasion, but which directs that the second sentence should not exceed the first sentence unless the judge considers that there is good reason for departing from the first sentence. Good reason might exist, for example, because of a change in the evidence or because, after careful consideration of the first sentence, the judge is of the view that the first sentence was inadequate. While I do not suggest that only manifest inadequacy of sentence will amount to good reason for increasing the sentence, in my opinion the policy considerations discussed in the authorities to which I have referred give weight to the view that fine tuning of the sentence should be avoided.
[38] (2000) 206 LSJS 187.
[39] Ibid at 191-192.
The High Court again had occasion to express some views obiter dictum in R H McL v The Queen.[40] The principal issue in that case concerned the application of s 569(1) of the Crimes Act 1958 (Vic), the equivalent of s 354(1) of the Criminal Law Consolidation Act 1935 (SA). The actual case involved the imposition of the same sentence by the Court of Criminal Appeal on setting aside and ordering a re‑trial on 4 counts out of 16 of which the appellant had been convicted, thus raising the possibility of a further penalty if he was convicted of the four counts on a re‑trial.
[40] (2000) 203 CLR 452.
In their joint judgment, Gleeson CJ, Gaudron and Callinan JJ referred to the fact that in the course of argument reference had been made by members of the Court, and not by counsel, to R v Gilmore.[41] In that context they said:[42]
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.
[41] (1979) 1 A Crim R 416.
[42] (2000) 203 CLR 452 at 459, [23].
No mention was made of any of the cases subsequent to Gilmore. Although the first sentence was to be regarded as “the upper limit” of the sentence to be imposed, there was the significant qualification that the weight to be given to that consideration depends on the circumstances of the individual case.
As authority for the following passage[43], McHugh, Gummow and Hayne JJ cited, in their joint judgment, Gilmore, Williams, Bedford, Chen, Campbell & Barker (No 2) v The Queen[44] and Petersen:
If the appellant is convicted on any count at the re‑trial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re‑trial than he or she received at the original trial. If the sentencing judge at the re‑trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.
[43] Ibid at 475-476, [72].
[44] (1996) 70 FCR 1.
Kirby J dissented in the result but conducted a thorough analysis of the cases to which I have referred, excluding Pahuja (No 2), Markovina and Martin (No 6). Following that review[45] Kirby J concluded that it was appropriate to approach the second sentence in the way explained by the Queensland Court of Appeal in R v Petersen.[46]
[45] Ibid at 494-499.
[46] [1999] 2 Qd R 85 at 87.
In this Court the matter was again discussed by Duggan J in R v Smith.[47] He felt constrained to follow Pahuja (No 2) which he considered to be consistent with the judgment of Burt CJ in Williams. He concluded:[48]
I proceed on the basis that, when sentencing after conviction on a retrial, the court must exercise its own discretion and it is not restricted by a ceiling created by the sentence imposed after the first trial. If the previous sentence is clearly inadequate, then the judge is at liberty to fix a higher sentence. However, all other things being equal, there are sound reasons of policy why, prima facie, the second sentence should not be higher.
[47] (2001) 80 SASR 396.
[48] Ibid at 402.
Finally, it may be said that the New South Wales Court of Criminal Appeal added one further refinement in R v MM.[49] That was a case which arose under s 7(1) of the Criminal Appeal Act 1912 (NSW), the equivalent of the section considered by the High Court in R H McL v The Queen.[50] Levine J referred to the “prima facie approach” discussed in Bedford and said:[51]
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.
[49] (2002) 135 A Crim R 216.
[50] (2000) 203 CLR 452.
[51] (2002) 135 A Crim R 216 at 223.
Hidden J agreed with Levine J. Howie J agreed generally with Levine J and endorsed the “convention” reviewed by Levine J.
There are other cases to which I have not referred in which the issue has been mentioned but not discussed at any great length.
A review of the cases reveals a variety of expression of circumstances in which a departure from the first sentence may be made. Garrett stands alone as being the only case where it is said that the sentencing discretion on the re‑trial is unfettered. The Full Court in that case did not make any reference to the policy considerations discussed in Gilmore which have guided the decisions of other courts ever since. Garrett is also inconsistent with Pahuja (No 2), but that decision also seems to have been made without reference to Garrett or to any other authority which by then had been decided. Martin J in Martin (No 6), although considering himself constrained to follow Garrett, expressed his own preference for what I perceive to be the New South Wales position, and that a finding of “manifest inadequacy” was not necessary to justify a departure. On the other hand, Duggan J in Smith considered that a higher sentence could be fixed if the previous sentence was “clearly inadequate”.
The view favoured by the New South Wales Court of Criminal Appeal, as expressed in Bedford[52], is that prima facie the earlier sentence should not be exceeded, but where the circumstances of the case call for a heavier sentence, the second court is not absolutely fettered and must give effect to its own assessment, giving reasons for imposing any longer sentence. This has most recently been described in R v MM not as a rule but as a convention in sentencing. There is no suggestion in the New South Wales cases that the second sentencing judge must be satisfied that the previous sentence was manifestly inadequate.
[52] The approach has been more recently affirmed in R v Merritt [2000] NSWCCA 365 and R v Mitchell [2002] NSWCCA 380.
The position in Victoria and Western Australia, based on Williams and Chen, seems to be that the second court must have regard to the first sentence, to the policy considerations mentioned in Gilmore and to all other relevant facts, and may depart from the first sentence if the court is of the opinion that the first sentence was “inadequate or inappropriate”. There may be a suggestion in the reasons of Burt CJ in Williams that a stricter standard is required by considering whether a prosecution appeal against the first sentence would have succeeded as being inadequate or inappropriate. However, that has not been pursued in other later judgments.
In Queensland, Petersen suggests that the same prima facie approach applies as in New South Wales, but that the second court should only apply a heavier sentence if the first sentence was “outside the appropriate range” or if the facts are substantially different. That was the view adopted by Kirby J in R H McL v The Queen. McHugh, Gummow and Hayne JJ in the same case suggested that the departure would only be justified if the original sentence was “manifestly inadequate”.
Is there a difference between a sentence which is manifestly inadequate or “outside the appropriate range” on the one hand and one which is merely “inadequate or inappropriate” on the other hand? “Manifestly excessive” is the phrase generally coined as the standard required to be met in order to justify interference with the sentencing discretion on an appeal against sentence by a convicted person. It suggests that the magnitude of the sentence itself manifests a sentencing error or something outside the acceptable sentencing range for that crime and the other relevant circumstances.
In R v Morse[53] King CJ said:[54]
This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstnaces of the offender.
[53] (1979) 23 SASR 98.
[54] Ibid at 99.
He went on to say:[55]
I bear in mind that this Court should not interfere with the sentence simply because its members would have imposed a lower sentence themselves, but only when they are satisfied that, having regard to all relevant factors, the sentence imposed is beyond the acceptable scope of judicial discretion.
White and Mohr JJ agreed with the Chief Justice.
[55] Ibid at 100.
In R v Tait[56] the Full Court of the Federal Court of Australia[57] said:[58]
An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error …
[56] (1979) 46 FLR 386.
[57] Brennan, Deane and Gallop JJ.
[58] Ibid at 388.
A finding that the first sentence must be manifestly inadequate or outside the appropriate sentencing range suggests that, leaving aside special considerations applicable to prosecution appeals referred to in Everett v The Queen,[59] the process is similar to that of an appellate court considering whether a particular sentence is manifestly excessive.
[59] (1994) 181 CLR 295.
In the recent case of Markarianv The Queen[60] Gleeson CJ, Gummow, Hayne and Callinan JJ observed:[61]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well‑known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is now shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”. [Footnote omitted]
[60] (2005) 215 ALR 213; [2005] HCA 25.
[61] Ibid at [25].
That does not appear to be the standard set in Chen and possibly Williams where it was said that a heavier sentence could be imposed where, having had due regard to the previous sentence and the relevant policy considerations, the court considers that the first sentence is inadequate or inappropriate. The higher standard would also not appear to be a requirement in New South Wales.
In order to resolve these conflicting views, it is necessary to revert to a consideration of the underlying sentencing principles. In the first place, it must be acknowledged that the sentencing judge, after a re‑trial, 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, namely the unfairness in mounting an appeal against conviction in order to correct an error, but at risk of being exposed to a heavier sentence on re‑trial, and the avoidance of a perception of retribution for mounting the appeal against conviction. The failure of this Court to recognise those policy considerations in Garrett, coupled with the overwhelming preponderance of authority since Garrett, suggests that Garrett should no longer be applied in this State.
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. That conclusion also accords with Pahuja (No 2) in this Court, with the obiter views of members of the High court in R H McL and with the view of Duggan J in this Court. It also accords with the approach of the Queensland Court of Appeal in Petersen.
While the phrase used by Burt CJ in Williams was “inadequate or inappropriate”, taken in its context I consider that the Western Australian court was imposing a requirement similar to “manifestly inadequate”. Burt CJ also spoke of a sentence that was “altogether inadequate or inappropriate”, and later qualified the expression as one applicable to a successful appeal against sentence by the Crown which, as noted below, requires a higher standard for interference than the sentence being merely manifestly excessive.

That standard was referred to by Barwick CJ in Griffiths v The Queen[62] where he said that:
… an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
[62] (1977) 137 CLR 293 at 310.
In Everett v The Queen[63] Brennan, Deane, Dawson and Gaudron JJ referred to that comment and said:
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”. [Footnote omitted]
[63] (1994) 181 CLR 295 at 300.
In order to justify a departure from an earlier sentence it is not necessary to show that the first sentence must manifest an inadequacy or inconsistency in sentencing standards. In my view, it will be sufficient if, in the opinion of the second sentencing judge, the first sentence, assuming similar facts, is manifestly inadequate in the sense discussed above. It follows that reference should be made to the policy considerations which underpin the ordinary case and the features which require departure from the original sentence. This would not leave any room for a minor variation or for some form of fine tuning of the first sentence.
Assuming a heavier sentence imposed because the first sentence is considered to be manifestly inadequate, and assuming no identifiable error otherwise justifying interference, the question for an appellate court reviewing the second sentence will still be whether that sentence was manifestly excessive. It will not be so by virtue only of the imposition of a heavier sentence for the reason that the first sentence was manifestly inadequate.
The sentencing Judge in this case considered that the first sentence was manifestly inadequate. On that basis, the sentence under appeal was justified unless it can be shown to be manifestly excessive or that it was infected with some other error in the exercise of the sentencing Judge’s discretion. No such error has been identified. I turn, therefore, to consider whether the sentence was manifestly excessive.
The offences were very serious. The Judge correctly described them as being “towards the top end of offending for offences of this type”. Each offence carried a maximum sentence of life imprisonment. The seriousness can be gleaned from the following passage in the sentencing remarks:
When you got her into your panel van you were not simply going to let her sleep (her intoxication) off or take her to your place so she could do that. You determined then that you would take her to the back-blocks somewhere between Callington and Murray Bridge, an area well-known to you, where you were going to rape her. This is what you were doing when she woke up in the back of the van.
Over the next couple of hours, you raped her five times. I find that you knew she was not consenting. You sexually abused her at will and ignored her pleas for you to stop. The events of that morning were the worst nightmare of a young woman wandering the streets substantially affected. That nightmare was a reality for the victim; taken by car to a secluded spot and raped a number of times by a stranger who has a loaded gun available.
There came a time when the victim was attempting to use her mobile phone. You then “freaked out”, as she put it, and produced the gun. You got out of the van, brandishing the rifle and checking that it was loaded, at the same time pointing it at her. You then kept saying that you did not know what to do with her now. You were saying that you did not know what to do with her because, if you let her go, she would go to the police. She managed to convince you that she would not go to the police because of her previous run-ins with the police and because she gave you her driver’s licence and registration papers for a vehicle. Her driver’s licence especially was your insurance against her going to the police because you would know where to find her if she did so.
There is no doubt that the victim feared that she would be killed by you shooting her. There is no doubt that you intended that she fear that. You pointed a loaded rifle at her after you raped her and at a time when you were saying you did not know what to do with her. She believed she was pleading for her life and you let her think that as a way of getting her not to report the matter to the police. I cannot say whether you would have pulled the trigger, but the victim feared that in a very real sense. That ensured her compliance after that while she was with you.
The sentencing Judge pointed out that the appellant had never shown any compassion or remorse and apparently had no insight into his offending. He described the appellant as “a very dangerous man” and was extremely guarded about his prospects of rehabilitation. General deterrence and personal deterrence were important factors. There were no other relevant mitigating factors. The appellant was not entitled to any discount that might apply to a plea of guilty or co-operation with the police.
In those circumstances it was open to the trial Judge to impose the sentence that he did. It was within the appropriate range.
In all the circumstances the sentence was an appropriate exercise of the sentencing Judge’s discretion. There is no justification for this Court to interfere.
I would dismiss the appeal against sentence.
VANSTONE J:
Appeal against conviction
For the reasons given by Bleby J, I would grant leave to appeal on ground 1, but I would dismiss the appeal.
Appeal against sentence
The appeal against sentence has two limbs. It is convenient to deal first with the contention that in imposing sentence after the second trial, the Judge should have been constrained by the sentence imposed by a different judge after the first trial.
The task of the sentencing judge
It was not suggested that the factual basis of the five counts of rape for which sentence was to be imposed was significantly different after the later trial. Additionally, the appellant gave similar evidence to the Court upon each trial.
In R v Garrett (1978) 18 SASR 308 the Court of Criminal Appeal discussed the approach which should be taken to re-sentencing a prisoner found guilty of offences for the second time. The Court held that the sentencing judge would be wrong to regard himself as bound by the sentence imposed after the first trial. The second judge should fix what he thought to be a proper sentence in the circumstances, one of those circumstances being that he had the advantage of knowing the sentence fixed by another judge.
A different approach was taken in the Court of Appeal of New South Wales in R v Gilmore (1979) 1 A Crim R 416. There, Street CJ (at 419-420) referred to policy considerations dictating that, apart from instances where the original sentence was seen to be manifestly inadequate, the second sentence should be no greater than the first. They included the public interest in ensuring that defects in trials should be challenged and laid bare on appeal, without an appellant running the risk of suffering a greater sentence subsequently, as well as the desirability of avoiding any appearance that the subsequent heavier sentence was imposed by way of retribution for the appellant having overthrown the original conviction. In a later case of R v Bedford (1986) 5 NSWLR 711 Street CJ reviewed the approach he had taken in Gilmore, suggesting (at 714) that what he said there should be taken as a “prima facie approach” which would not absolutely fetter the second judge in giving effect to his own assessment of the circumstances of the case. If that assessment led to an increase in the sentence then the reasons for reaching that view should be indicated.
In R v Petersen [1999] 2 Qd R 85 at 87 the Court of Appeal of Queensland described the process in this way:
… 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.
In R v Martin(No 6) [2000] SASC 9, (2000) 206 LSJS 187 Martin J was called upon to impose a non-parole period after the prisoner was convicted of murder for the third time. He reviewed the decisions in Garrett, Gilmore and Bedford in some detail. Whilst acknowledging the authority of the decision in Garrett, Martin J found force in the more recent decisions. He said:
… in my opinion there is considerable merit in an approach which requires the second sentencing judge not only to have regard to the sentence imposed on the first occasion, but which directs that the second sentence should not exceed the first sentence unless the judge considers that there is good reason for departing from the first sentence. Good reason might exist, for example, because of a change in the evidence or because, after careful consideration of the first sentence, the judge is of the view that the first sentence was inadequate.
In R v Smith [2001] SASC 360, (2001) 80 SASR 396 Duggan J took a broadly similar approach. Again he arrived at that approach after a survey of the relevant authorities. His Honour said:
I proceed on the basis that, when sentencing after conviction on a retrial, the Court must exercise its own discretion and it is not restricted by a ceiling created by the sentence imposed after the first trial. If the previous sentence is clearly inadequate, then the judge is at liberty to fix a higher sentence. However, all other things being equal, there are sound reasons of policy why, prima facie, the second sentence should not be higher.
In argument before this Court the appellant relied on the High Court decision of R H McL v The Queen [2000] HCA 46, (2000) 203 CLR 452. The issue in that case turned on the construction of s 569(1) of the Crimes Act 1958 (Vict). There the Court of Appeal had quashed a small number of the total convictions recorded against the appellant. It proceeded to re-sentence on the remaining convictions, utilising the Crimes Act provision mentioned. The fresh sentence was of the same duration as that previously imposed. That raised the possibility that were the appellant convicted of the further counts on a retrial, he might end up with a total sentence greater than the original. The High Court found no error in the Court of Appeal’s approach. As is apparent, the issue now under consideration was not directly raised. Nonetheless in the joint judgment of Gleeson CJ, Gaudron and Callinan JJ (at 459) reference was made to Gilmore and their Honours said:
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 would 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.
In the judgment of McHugh, Gummow and Hayne JJ the general rule was described in these terms:
Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a retrial than he or she received at the original trial. If the sentencing judge at the retrial 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.
Kirby J was in dissent in relation to the result in the case, but since the case did not turn on this matter, that is of little consequence. His Honour undertook an extensive survey of the Australian authorities dealing with this issue and preferred the formulation of the “rule of restraint” (498) in Petersen’s case, to which I have already referred. Thus there was clear recognition of the policy reasons identified in Gilmore.
The New South Wales Court of Criminal Appeal considered these issues more recently in R v MM [2002] NSWCCA 431, (2002) 135 A Crim R 216. After a retrial the prisoner was convicted of only eleven of the original fourteen charges for which he had previously been sentenced. The sentence imposed was the same as the original one. Levine J, with whose reasons Hidden J agreed, expressed the view (at 223) that the cases established a “convention” rather than a “rule”. He observed that the second sentencing judge is not “re-sentencing”, but exercising an independent sentencing discretion. He described the judge’s approach as demonstrating a “principled application of the convention” and declined to reduce the sentence. The third member of the Court, Howie J, agreed that the appeal should be dismissed. His Honour doubted that the policy considerations referred to in Gilmore had any application in the particular circumstances, and saw the appellate court’s task as being concerned only with an examination of the second sentence.
What I think flows from the authorities is that there is no absolute rule binding the judge undertaking the fresh sentencing task. The discretion remains that of the second judge. Consequently a departure from the original sentence (for whatever reason) cannot constitute an error in the sentencing process. There are subtle distinctions in the cases in the manner of expression of what I think is best described as a convention or approach.
It is noteworthy that in Garrett, the leading decision in this jurisdiction, no mention was made of the policy reasons for expecting a conformity of the two sentences. I think it is true to say that in the years which have passed since Garrett the courts have been increasingly inclined to place weight on the policy considerations tending to dictate that the second sentence be no higher than the first. The High Court has clearly recognised them.
I would be disinclined to frame the touchstone for departing from the earlier sentence in terms of “manifest inadequacy”. I do not think that any binding authority dictates as much. I would prefer the less rigid approach outlined in Bedford, Petersen, Martin and Smith, whereby “good reason”, adequately identified, would suffice to justify an increase. Such reason could be found in the earlier sentence being outside the appropriate range.
In the matter under consideration the Judge was plainly apprised of the relevant decisions bearing on his task and also the policy considerations underpinning them. He explained his position in his remarks. He said that if he could only impose a greater sentence where he considered the original sentence manifestly inadequate, then on his view of the case that requirement was satisfied. For the reasons already given, I do not consider that the Judge had to go so far. But this was certainly a principled evaluation of the convention. The difference between the two head sentences imposed is substantial. As can be seen, the subsequent sentence is 25 per cent higher than the original. This is not a case of the second Judge “fine-tuning” the earlier sentence. I do not consider that in the circumstances the appellant could justify any sense of grievance arising simply from the fact of departure from the original sentence.
The task for this Court
The second limb of the appeal against sentence is concerned with identifying the ambit of the question for this Court to determine. It seems to me that, certainly in circumstances where the Judge has acknowledged the convention, the task for this Court is simply to consider the fresh exercise of sentencing discretion to determine whether the sentence is manifestly excessive. In undertaking that task it is not necessary to decide whether the original sentence fell within the available range of sentences, or otherwise to have regard to it.
I turn then to the complaint that the sentence is, standing alone, manifestly excessive.
That contention can be dealt with fairly shortly. As the Judge’s sentencing remarks make plain, these were serious offences of their type. The appellant, a man then aged 30 years, travelled to the city of Adelaide on the evening preceding the crimes with the metal working parts of a .22 rifle in his vehicle. In the early hours of the morning, after visiting various nightclubs and bars, he determined to go home. He came across the victim in the vicinity of the place where his vehicle was parked. She was extremely intoxicated. The appellant took advantage of her state under guise of assisting her. He drove her to an area well known to him, out of Murray Bridge, and, over the ensuing few hours, raped her five times.
During that time the rifle was produced and pointed at her. The victim feared for her life. She persuaded the appellant that she would not report him and eventually he returned her to the Adelaide metropolitan area and released her.
The Judge’s remarks show that he was not at all confident about the appellant’s prospects of rehabilitation. In those circumstances the absence of relevant prior convictions has only limited mitigatory effect.
The maximum penalty for rape is life imprisonment. The Judge utilised s 18A Criminal Law (Sentencing) Act 1988 to impose one penalty, being 15 years imprisonment, with a non-parole period of 11 years. In my view the sentence imposed fell well within the available range. I consider that this Court would not be justified in interfering with the exercise of sentencing discretion.
Conclusion
For these reasons I would dismiss both the appeal against conviction and the appeal against sentence.
WHITE J:
Appeal Against Conviction
I agree that leave to appeal should be granted on ground one and refused on all other grounds. I agree that the appeal against conviction should be dismissed. I agree with the reasons of Bleby J.
Appeal Against Sentence
The appeal against sentence raises two questions. The first is a question of principle, namely, what regard should be had by a judge sentencing an offender following a retrial to the sentence imposed after the original trial? The second is whether the sentence imposed in this case was manifestly excessive.
Sentencing After a Retrial
The authorities bearing upon the question of principle have been reviewed by each of Bleby J and Vanstone J. It is not necessary for me to repeat their summaries. What follows should be understood as based upon the summaries contained in their judgments.
From the review of the cases by Bleby J and Vanstone J, it can be seen that Garrett[64] is the only decision in which it has been held that the sentencing discretion following the retrial is unfettered by the sentence imposed following the first trial. Further, Garrett is the only decision which does not advert to the policy considerations which underpin the later decisions, namely, that it is in the public interest that defects in a trial by which a person has been found guilty should be exposed so as not to be perpetuated; that offenders should not be constrained from appealing so as to expose the defects by reason of a fear that, if successful, a heavier sentence may be imposed; and that there should not be any reasonable basis for a criticism that a form of retribution, in the form of a heavier sentence, has been exacted on account of the first verdict having been overturned on appeal.
[64] R v Garrett (1978) 18 SASR 308.

Garrett has not been followed in two judgments of this Court[65] and, although followed in Martin (No 6)[66], Martin J considered there to be “considerable merit” in a different approach. Garrett is also inconsistent with the views expressed by way of obiter in RH McL v The Queen.[67]
[65] R v Pahuja (No 2) (1989) 50 SASR 551; R v Smith [2001] SASC 360, (2001) 80 SASR 396.
[66] R v Martin (No 6) [2000] SASC 9, (2000) 206 LSJS 187.
[67] [2000] HCA 46, (2000) 203 CLR 452.
In my opinion, Garrett ought not to be regarded as stating the position which should continue to be applied in this State.
As one would expect, none of the authorities since Garrett state as an absolute proposition that the sentence imposed following a first trial may never be exceeded in the sentence following a second trial. Three principal considerations indicate why that is so. The first is that the sentencing discretion, following a finding of guilt in the second trial, is to be exercised by the judge conducting that trial, and by no-one else. It is not possible for that sentencing discretion to be fettered absolutely by what has happened previously. The second is that there is always the possibility that the facts proved in the second trial will vary in a material way from those proved in the first. The sentencing judge is to sentence on the facts proved at the second trial, and not by reference to what is believed to have been proved at the first. The third is that quite apart from a different factual basis, there may (in rare cases) be some change in the sentencing régime which is to be applied since the first sentence was passed (or perhaps in the range of sentencing options which are available). In these cases, admittedly rare, the sentencing judge may be expected to sentence in accordance with the sentencing régime then prevailing.
There have been a variety of ways in which the proper approach to be applied when resentencing has been expressed. Various shades of emphasis have been used. The authorities speak in terms of an approach to be adopted “ordinarily”[68] or “generally”[69] or “in the absence of countervailing considerations”[70]. It matters not in my opinion in these circumstances whether the approach is described as a rule, or a principle, or a convention.[71] What is clear is that the public policy considerations to which reference has been made indicate that regard is to be had, as a fundamental consideration, in the sentencing discretion to the previous sentence, and that it should be exceeded only where there is “good reason”[72] to do so.
[68]   RH McL v The Queen [2000] HCA 46 at [72], (2000) 203 CLR 452 at 475 per McHugh, Gummow and Hayne JJ.
[69]   R v Pahuja (No 2) (1989) 50 SASR 551 at 562 per White J.
[70] RH McL v The Queen [2000] HCA 46 at [23], (2000) 203 CLR 452 at 459 per Gleeson CJ, Gaudron and Callinan JJ.
[71]   cf. R v MM [2002] NSWCCA 431, (2002) 135 A Crim R 216 at 223.
[72]   R v Martin (No 6) [2000] SASC 9 at [13]; (2000) 206 LSJS 187 at 191-2 per Martin J.
I do not consider it helpful to add yet another form of expression to the various statements of the proper approach to be applied. I doubt that there is any difference in practical effect in the expressions of approach in RH McL v The Queen by Gleeson CJ, Gaudron and Callinan JJ[73] on the one hand, and by McHugh, Gummow and Hayne JJ[74] on the other. But if there is, the approach stated by McHugh, Gummow and Hayne JJ, supported as it is by Kirby J,[75] should, in my opinion, be the approach applied in this State. That approach appears in the following passage:
Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare.[76]
[73] [2000] HCA 46 at [23]; (2000) 203 CLR 452 at 459.
[74] Ibid at 475-6, [72].
[75] Ibid at 498-9, [140].
[76] Ibid at 476, [72].
It is true that the decisions in New South Wales and Victoria appear to state the approach in a less restrictive fashion, but bearing in mind the statements in RH McL v The Queen and in the earlier decisions of this Court, I do not consider that that is the approach which should be adopted in this State.
The reference to “manifest inadequacy” in the passage from RH McL v The Queen[77] should be understood as a reference to a sentence which, on the facts proved before the second sentencing judge, could not be regarded as within a reasonable range of sentencing discretion for that offence. The second sentencing judge is not of course called upon to review the reasonableness of the sentence on the facts proved before the original sentencing judge. It is no part of the sentencing process to pass on the reasonableness of a sentence imposed in an earlier factual and forensic context. Instead, the second sentencing judge is required to consider the matter more practically, ie, whether, on the facts proved before him/her, a sentence of the magnitude imposed by the previous judge can be regarded as outside the reasonable range of sentences which could be applied for the offence in question.
[77] Ibid at 476, [72].
This approach underpins the statements in many of the authorities. For example, in Williams (No 2), Burt CJ said that the second judge should not feel constrained if he/she considered the first sentence to be “altogether inadequate or inappropriate”[78]; in Pahuja (No 2) White J said that the second judge may depart from the first sentence if “convinced that the former sentence was manifestly excessive or manifestly inadequate”[79]; in Smith, Duggan J used the expression “clearly inadequate”[80] and in Petersen the Queensland Court of Appeal referred to the earlier sentence being “outside the appropriate range”[81].
[78] [1982] WAR 281 at 283-4.
[79] (1989) 50 SASR 551 at 562.
[80] [2001] SASC 360 at [21]; (2001) 80 SASR 396 at 402.
[81] [1998] QCA 65; [1999] 2 Qd R 85 at 87.
I repeat that the manifest inadequacy of a previous sentence is not the only circumstance in which an increase on the former sentence may be appropriate. A material change in the facts may warrant such a departure. In very rare cases, a change in the applicable sentencing régime may also require a departure. But as McHugh, Gummow and Hayne JJ have pointed out, the circumstances in which imposition of a higher sentence would be appropriate may be expected to be rare.[82] Slight variations or “fine tuning” of the previous sentence increasing its severity would, in almost all cases, be inappropriate.
[82] RH McL v The Queen [2000] HCA 46 at [72]; (2000) 203 CLR 452 at 476.
It follows from what I have said above that whenever a sentencing judge does think it appropriate to impose a more severe sentence than that originally imposed, reference should be made to the approach outlined above, to the policy considerations which underpin it, and that the features which make departure from the original sentence appropriate be identified.
The principle discussed above refers of course only to a sentence which is in excess of that originally imposed. The principle does not fetter in any way the discretion of the second judge to impose a lesser sentence when that may be appropriate.
The Sentence Imposed
In the present case, the sentencing judge did apply the approach which I consider appropriate. He said:
I accept that, ordinarily, I should not, in this situation, impose a sentence greater than that imposed on the first occasion, notwithstanding my own sentencing discretion. High Court authority, although not binding on me, but is highly persuasive, would suggest that I should not impose more as a matter of policy unless I think that the original sentence was manifestly inadequate. If that is the appropriate test, on my view of the evidence in this case, it is satisfied. I am not bound by the sentence of [the first judge] and exercise my own sentencing discretion.
The circumstances of the offences have been reviewed by Bleby and Vanstone JJ. In my opinion, the sentencing judge was correct in concluding that the first sentence was manifestly inadequate for the offending proved in this case. The sentencing judge was justified in imposing a higher sentence. I also agree that the sentence of 15 years with a non-parole period of 11 years cannot be regarded as manifestly excessive.
For these reasons I would dismiss the appeal against sentence.