R v Baltensperger - [2005] SASC 465

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BALTENSPERGER
Reasons for Rulings of The Honourable Justice Nyland
1 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
Application for leave to appeal against conviction - five counts of rape - various grounds of appeal including refusal of judge to grant a mistrial after a sympathy card given to prosecutor following death of his father - steps taken by trial judge to ensure jury understood need to consider evidence in objective manner - lack of particulars to support other grounds - leave refused.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal against sentence - re-trial - judge at second trial substantially increased sentence imposed at first trial - arguable that in so doing second judge erred - leave granted.
Summary Offences Act (SA) 1953 ss 79A and 79D, referred to.
Webb and Hay v The Queen (1994) 181 CLR 41; R v Garrett (1978) 80 SASR 308; R v Martin (No 6) (1999-2000) 106 LSJS 187; RHMcL v The Queen (2000) CLR 452, discussed.

R v BALTENSPERGER
[2005] SASC 465
APPLICATION FOR LEAVE TO APPEAL
Appeal against conviction:

The applicant was tried in the District Court on five counts of rape, all of which related to one victim. The applicant had earlier been tried with respect to the same charges in the District Court but on 4 November 2004 the Court of Criminal Appeal allowed the appeal against the convictions recorded at the earlier trial, and ordered a re-trial.
On 11 April 2005, following the re-trial, the applicant was found guilty by the jury of all charges against him. Although the applicant was represented by counsel during his trial, he appeared in person on the hearing of the application for leave. Mr Pearce appeared for the Director of Public Prosecutions on the leave application. As the applicant was unrepresented throughout the hearing of the leave application, I adjourned the hearing on several occasions to ensure that the applicant had proper opportunity to put all relevant submissions to the court in support of his proposed appeal. On each occasion that the matter came on for hearing I emphasized the need for the applicant to provide proper particulars with respect to each of his grounds of appeal. The applicant has in the course of these hearings provided copious notes relating to this appeal but those notes have primarily been directed to Ground 1. On 27 October 2005 I informed the applicant that I was not prepared to delay the matter any further and that I proposed to finalise the application by 1 December 2005. I indicated that any further submissions should be made by that date.
When the matter came on for hearing on 1 December 2005, the applicant provided me with further handwritten submissions all of which related to Ground 1. In my opinion, there was nothing in that material which added to any of the earlier submissions with respect to that ground. The applicant had not prepared any written submissions relating to any other ground and sought a further adjournment to enable him to attend to those matters and to seek legal advice. He complained that he had suffered prejudice in finalising these matters as he had been moved to Port Augusta gaol on 17 November 2005. I was not, however, prepared to adjourn the matter any further as I considered that the applicant had been provided with ample opportunity to attend to all of these matters as the application for leave had first come on for hearing on 30 May 2005.
Background:
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 (S), was that on 20 April 2002, she had been out drinking with friends at various night spots. She became intoxicated in the course of the evening and was eventually picked up in Hindmarsh Square by the applicant who was driving a panel van. The applicant then drove her to somewhere near Murray Bridge. S said that she woke up in the back of the van and the applicant 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 applicant and told him to let her out but she was unable to escape. Her underwear came off. The applicant then had vaginal sexual intercourse with her against her will. This represents Count 1 on the information.
S 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 applicant said but the man left. She kept telling the applicant to shut up and leave her alone. The applicant kept saying it was okay and he would take her home. He then moved the panel van up a little side track and parked in a group of trees. S 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 applicant 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. S 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”.
S said that she then freaked out because the applicant 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 applicant 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 applicant 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 applicant kept saying he did not know what he was going to do with her. S continued to ask the applicant 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.
S said the applicant then drove her to his home at Murray Bridge. He went inside but thereafter drove her back to Adelaide. He left S at a suburban intersection at about 1 pm. S 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 S 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, B, who kept S talking. B described S as being in a state of hysteria, fast talking, hard breathing and obviously upset. B said that S 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 S at the phone box. He said he had trouble understanding her. S complained that she had been raped. S 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 applicant’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 applicant was subsequently interviewed by Detective Alison Bee, but refused to answer any of her questions. A letter written by the applicant to Detective Bee was, however, tendered in evidence. That letter was written whilst the applicant was in custody and the applicant said it was simply to put his account.
The applicant 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 S 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 S was a willing and consenting party to all of the sexual acts which took place.
The applicant 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.
The notice of appeal filed by the applicant on 26 May 2005, contained five grounds of appeal against conviction as well as an appeal against sentence. The applicant subsequently filed more detailed hand-written grounds of appeal against conviction which are as follows:
1.The forwarding by the Jury to the prosecutor upon the death of the [prosecutor’s] father, of a sympathy card and the refusal of the trial Judge to declare a mistrial.
2.The exist[e]nce, for the entirety of the trial of false and misleading information on the internet about the [Appellant’s] criminal antecedents. T324-T333. Especially over the Easter long weekend.
3.The trial [Judge’s] refusal to permit the defence to contradict the complainant about statements she had allegedly made to a police officer during the big day out incident. T301-302.
4.Permitting the prosecution to adduce evidence of the [complainant’s] description of the firearm as a recent complaint.
5.The [Judge’s] cross-examination of the appellant as to significant matters in two sep[a]rate passages.
6.The trial Judge failed to exclude the [appellant’s] photo and ensure the accused got a fair trial instead of one where the Crown used looks to secure a conviction.
7.The investigating [detective’s] failure to investigate this case perverting the course of justice.
8.Malicious prosecution by investigating [detective’s] conduct. Crown [solicitor’s] conduct by coaching witnesses. Members of [SAPOL] manipulating evidence to their advantage. Crown [Solicitor’s] office the DPP may have supplied only evidence which was beneficial to the complainant. Possibly non full disclosure.
9.My [counsel’s] failure to follow instruction and use the evidence that they had at trial and their failure to discredit witnesses. Also their failure to give back all the evidence which was given to them before the first appeal knowing full well of the [accused’s] intentions. This includes photos, previous correspond[e]nce from other solicitors. All the evidence they failed to use at trial as per instruction.
10.Crime scene [investigators’] negligence in conducting their investigation.
11.Preservation of evidence the Crown used at trial and their improper handling and failure to fully investigate the carpet.
12.All my previous [counsel’s] conduct in this case was negligent and failed to follow instruction.
13.The trial Judge erred in his summing up.
14.The trial Judge was premature in his decision to not exclude the Shilton conversation.
15.Reliability and credibility of the complainant.
Ground 1:
This ground relates to the refusal of the judge to grant a mistrial after a sympathy card had been provided by the jury to the trial prosecutor. On 31 March 2005, prior to the evidence of the applicant being completed, the prosecutor was unable to attend court and the judge advised the jury that the prosecutor’s father was gravely ill and the trial would therefore be adjourned for a short period. The prosecutor’s father died a few days later.
The trial resumed on Monday, 4 April 2005, with the accused completing his examination-in-chief and being cross-examined. The trial continued to Tuesday, 5 April 2005 when all the evidence was completed. At the conclusion of the evidence, the judge advised the jury that there would be a short delay prior to hearing addresses. The matter was then stood over until 2 pm on Thursday, 7 April 2005. Before adjourning, the judge reminded the jury of all of the directions he had given during the course of the trial about not speaking to anyone other than a fellow juror about the case, and deciding the case only on what they had seen and heard in the courtroom.
The matter was subsequently called on for further hearing on Wednesday, 6 April 2005, with another prosecutor appearing for the DPP. It appeared that sometime after lunch on the Tuesday, a juror had handed a sheriff’s officer a condolence card to give to the prosecutor as a result of the death of the prosecutor’s father. The sheriff’s officer who handed the card to the prosecutor gave evidence about what occurred when the card was handed to her (Tr 1032-1033). She said that the juror who handed her the card initially said “Please give this card to Mr Rice” and then corrected herself and said it was to go to Mr White. The juror said “It has nothing to do with the case, it is just a condolence card, can you please give it to him”. The sheriff’s officer said that although the card was given to her by a single juror there were other jury members around. There was no other discussion about the matter and the sheriff’s officer handed the envelope to the prosecutor after the court adjourned. The prosecutor then arranged for the matter to be brought to the attention of the judge.
Counsel for the applicant applied for a mistrial based on the fact that the sympathy card had been given to the prosecutor. After hearing evidence from the sheriff’s officer as to what had occurred and hearing argument from counsel, the judge deferred his decision on the mistrial application until he had an opportunity to hear collectively from the jury. When the matter resumed on the afternoon of Thursday, 7 April, the judge raised the issue with the jury (Tr 1047) in the following way:
Ladies and gentlemen, it has 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 [a] number of you, just wanted to express your sympathy to Mr White.
The judge then explained to the jury that he was going to seek an assurance from each of them that they would not communicate in any way with counsel or any witnesses and once again reminded them of the need to confine their discussions to their fellow jurors. Next he required individual assurances that each of them would consider the evidence both dispassionately and impartially and deliver verdicts based only on that evidence. The judge then asked each of the jurors in turn whether he/she could give him that assurance and each of them did so. As a result of those assurances, the judge declined to grant the application for a mistrial and the trial proceeded.
The judge then summed up the case for the jury on Monday, 11 April 2005. In the course of his summing up he said (p 4):
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.
After then directing the jury as to the onus of proof, the judge returned to this topic and said (p 6):
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 appropriate test to be applied in a case such as this is that set out in Webb and Hay v The Queen[1]. In that case, the High Court held that the test to be applied for determining whether an irregular incident involving a juror warranted the discharge of the juror or, in some cases, the jury, was whether the incident was such that notwithstanding any proposed or actual warning of the judge, it gave rise to a reasonable apprehension or suspicion on the part of the fair minded and informed member of the public that the juror or jury has not or would not discharge their task impartially.
[1] (1994) 181 CLR 41
In this case, the judge acted promptly and decisively when the matter was brought to his attention. He gave the jury a strong direction which required them to have regard only to the evidence which they were to consider in a dispassionate manner and putting aside all feelings of sympathy or emotion. He was clearly satisfied by the assurances given to him by the individual jurors. He reminded the jury again in the course of his summing up to consider the evidence in a dispassionate manner. The judge was entitled to assume that the jury would accept and act upon his directions. Unlike the situation which arose in Webb and Hay (supra) where flowers were given to the mother of the deceased person, the expression of sympathy to the prosecutor in this case did not impinge on the facts of the case. I would not grant leave to appeal on this ground.
Ground 2:
The issue of information on the internet was brought to the attention of the trial judge on Monday, 21 March 2005. (Easter was from 25 March 2005 to 28 March 2005.) It appeared that on the weekend prior to the matter being raised in court, counsel for the applicant had searched the internet with the Google and Yahoo search engines and had found a reference to the applicant on a site called Mako. Mako is a site which records details of convicted paedophile sex offenders. The information relating to the applicant was that he was a 32 year old convicted rapist who had been sentenced in 2003 to 12 years gaol with a nine years 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. The information recorded on the site obviously referred to the conviction and sentence arising out of the earlier trial. As a result of the applicant’s details being available on the internet, counsel for the applicant applied for a mistrial. The judge refused the application.
The judge was clearly alert to the problem of information generally being available on the internet as at the commencement of the trial he gave the jury strong directions about the need to decide the case on the evidence heard in court and nothing else and said (Tr 220):
… You will need to disregard your emotions, your personal views about things and decide the case on the evidence alone. You should not involve yourself in any form of private investigation about the matter. Saying that is merely another way of emphasising you decide the case on what you see and hear in this court and nothing else. (emphasis added)

The judge was entitled to proceed on the assumption that the jury would not disregard what he had told them, even though the material referred to by counsel was readily available on the internet. In refusing the application for a mistrial, the judge was also influenced by the fact that there was nothing positive raised by counsel to suggest that any juror had disobeyed that direction, or that any of the information had been obtained by any of them. In any event, the fact that the applicant had previously been tried for the same offence was a matter which came to the attention of the jury in the course of the trial, and was the subject of a direction from the trial judge in the course of his summing up. The judge was understandably reluctant to make a specific direction to the jury warning them against making an internet search as that could well have created the situation which he sought to avoid. Continuously throughout the trial, however, he reminded them of the need to try the case on the evidence that they had heard in court, and nothing else.
I would refuse leave on this ground.
Ground 3:
In the course of S’s cross-examination, she was asked questions relating to occasions in the past upon which she had been drinking and had been in trouble with the police. In particular, she was cross-examined about an incident which had occurred on 1 February 2002, at an event known as the Big Day Out at the Wayville showgrounds. This was an occasion upon which there was some crowd surfing. S agreed that she had been involved in that activity and was drunk and that police were called. S agreed that she had been asked to leave and that she had struggled with the police and had to be dragged from the ground after kicking and biting the finger of a police officer. S agreed she was grossly affected by liquor that day. It was put to her that she had told the police that she had not been crowd surfing but “had been trying to get away from a male who had shoved his cock in ‘your’ face”. S denied saying that to police and also denied that such an incident had occurred. She attributed her behaviour on this particular occasion to the alcohol that she had consumed. That then gave rise to the question of whether the applicant was entitled to call some evidence from the arresting police officers by way of rebuttal. The judge took the view that the issue of what S said to the police on this particular occasion was a collateral issue which related solely to the credibility of the complainant and declined to allow that evidence to be called. In my opinion he was correct and this ground is not arguable.
Ground 4:
This ground is concerned with the issue of recent complaint. The statements made by S to her mother, brother and Constable Elliott were left to the jury as recent complaint. The topic of recent complaint and distress was the subject of the appeal arising out of the earlier trial but on that occasion was primarily concerned with the judge’s direction on distress and its relationship to his direction on intoxication which was found to be inadequate.
On the hearing of this application, the applicant did not appear to take issue with the evidence of these three people being treated as evidence of recent complaint. He complained, however, about the evidence given with respect to the description of the gun which was said to have been used by the applicant in the commission of these crimes.
Constable Elliott gave evidence that when S was describing the circumstances of the rape to him she mentioned being threatened with a firearm which she believed to be a .22 calibre rifle. He said that she also made reference to it not having a stock. No gun matching that description was ever located but a search of the applicant’s property located a wooden stock of a gun.
The evidence given by S with respect to the circumstances of the rape consisted of being sexually attacked at gunpoint. The issue of the gun was inextricably interwoven with S’s complaint about the nature of the attack upon her and is also relevant to the question of consent. The evidence of the police officer and the subsequent finding of the stock of a gun at the applicant’s property are consistent with S’s account of what had occurred. It would have been impossible to exclude the reference to the gun from either S’s description of events or the evidence of the police officer. In my opinion, these were matters properly before the jury. I would not give leave to appeal with respect to this ground.
Ground 5:
This is a complaint about the judge’s cross-examination of the applicant as to significant matters in two separate passages. No particulars have been provided by the applicant with respect to this matter. Leave is therefore refused.
Ground 6:
In the course of the voir dire hearing, counsel for the applicant asked the judge to exclude a photograph of the applicant which was contained in a bundle of photos which eventually became Exhibit P6 at the trial (Tr 207).
S gave evidence by CCTV. The photograph of the applicant was relied on by the Crown at the first trial for identification purposes. Counsel for the applicant at the re-trial said that no issue was taken with respect to identification and sought to exclude the photograph on the ground that it was unflattering and the applicant appeared to have a menacing look. No other prejudice to the applicant was identified other than his appearance in the photo. The judge decided there were insufficient reasons to exclude it. I agree with that conclusion. I would refuse leave to appeal on this ground.
Ground 7:
This is a complaint about the “investigating [detectives] failure to investigate the case perverting the course of justice”. No particulars have been provided with respect to this ground. Leave is therefore refused.
Ground 8:
This ground complains of malicious prosecution by the Crown and police and suggestions of improper conduct by them in the course of the prosecution. There is no information before the court to justify or substantiate this broad allegation. Leave is refused.
Ground 9:
This ground complains of the applicant’s counsel’s failure to follow instructions. I spent some time explaining to the applicant that he would need to file an affidavit or give oral evidence deposing to the specific matters about which he complained. The applicant subsequently provided me with a handwritten document which purported to comply with that direction. Although the document is not in proper form I have had regard to it for the purposes of determining this application. There is a complaint about the solicitor’s failure to find witnesses with no details have been provided with respect to them or information as to how the failure to call them might have affected the outcome of the trial. There is also a complaint relating to the denial of bail and the failure to ensure that the applicant’s mother was present in the courtroom.
In my opinion there is nothing in the handwritten notes which would support leave being granted. Leave is therefore refused.
Grounds 10 and 11 can be dealt with together:
This relates to a complaint about the crime scene investigators’ negligence in conducting their investigation and preservation of the evidence. No particulars have been provided with respect to this ground. In any event the applicant was represented at trial by experienced counsel who, in my opinion, would have been alive to any defects in that aspect of the prosecution case. Leave is refused.
Ground 12:
This ground asserts that all the previous counsel’s conduct in this case was negligent and failed to follow instruction. This appears primarily to be directed to the conduct of the earlier trial and is therefore irrelevant to these proceedings. In any event, no particulars have been provided to support this ground. Leave is therefore refused.
Ground 13:
This ground is a complaint that the trial judge erred in his summing up but no particulars have been provided with respect to it. Leave is refused.
Ground 14:
This ground is a complaint that the trial judge was premature in his decision not to exclude the Shilton conversation. In accordance with standard practise a voir dire hearing was held prior to trial to exclude an exchange which took place between the applicant and Senior Constable Shilton at about 10.55 am on 22 April 2002. It was argued that the admission of this evidence would be unfair to the applicant. Both the applicant and Shilton gave evidence at the voir dire. There appeared to be no dispute that the applicant mentioned a gun to Shilton in this conversation. The prosecution relied upon the statement as a piece of esoteric knowledge with respect to the crime alleged against the applicant which supported the evidence given by S as to the use of a gun.
Shilton had been involved in the arrest of the applicant earlier that day, and had given him his rights pursuant to s 79A of the Summary Offences Act1953 and was present when Detective Bee conducted a video interview with him. Thereafter, Shilton took the applicant to the charge counter where he was formally charged, following which he arranged to fingerprint the applicant. In the course of the fingerprint process, Shilton said that the applicant initiated a conversation with him and related it in the following way from his notes: (Tr 57):
[Baltensperger] said: ‘I don’t know where this gun come from I didn’t have a gun’.
I said:        ‘I don’t know what has been 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’.
Shilton said that he did not think of giving the applicant his s 79A rights again as he had given them to him earlier that day, nor did he say anything further to him as it was not his investigation.
On 17 March 2005, the judge delivered his ruling on the voir dire and declined to exercise his discretion to exclude the conversation. In so doing, the judge preferred the evidence of Shilton to the applicant. He found that the applicant had been cautioned twice before volunteering the remark about the gun. The judge found that the exchange between the applicant and Shilton was after the formal interview and s 74D did not apply because Shilton did not propose to conduct an interview. The judge further indicated that even if he had been wrong about that and s 74D did apply then he would have no hesitation in using s 74E to admit the evidence. No error of approach has been demonstrated with respect to this matter. I would refuse leave with respect to this ground.
Ground 15:
This ground simply states “Reliability and credibility of the complainant”. No particulars are given with respect to this matter. The defence argued at trial that there were a number of inconsistencies in S’s evidence and these, combined with the accused’s denial on oath and his assertion of consent, meant that the jury should not find charges proved beyond reasonable doubt. The judge in the course of his summing up spent quite some time going through purported inconsistencies in the evidence given by S. This included directions as to how the jury might take into account the evidence relating to S’s intoxication. The need carefully to assess the reliability of the complainant was a matter for the jury and that was made clear to them. Leave is refused.
Appeal against Sentence:
The applicant has also filed an application for leave to appeal against sentence in the following terms:
1.     Manifestly excessive.
2.     Trial judge failed to publish his reasons for increasing the sentence.
3.     He may have made impermissible use of victim impact statements.
4.     Judge’s findings were wrong and fuelled by Crown’s lies.
Following his conviction at the first trial, the applicant was sentenced to be imprisoned for 12 years with a non-parole period of nine years for all offences. Following the convictions recorded on the re-trial, the applicant was sentenced to be imprisoned for 15 years with a non-parole period of 11 years. In imposing the higher sentence, the judge referred to the factual circumstances of the case which included S’s fear that she would be killed by the applicant shooting her. The judge was provided with victim impact statements which included one from S and three from members of her family, the latter primarily relating to their observations of the impact of the applicant’s crimes upon S.
In the course of his remarks, the judge referred to having received those victim impact statements which he said he had regard to “only in the measured way and for the purpose identified in the authorities”. The judge considered the applicant to be a dangerous man and was guarded about his prospects of rehabilitation. The judge referred to the fact that the applicant had little by way of prior offences and nothing of a sexual nature or involving violence but described the applicant’s lack of remorse and lack of insight into his offending to be worrying. The judge took into account a report from Dr Raeside and also the fact that the applicant had been subject to assaults in prison and was likely to spend time in protective custody. He considered, however, that the nature of the applicant’s crimes to be towards the top end of offending of this type.
The judge accepted that ordinarily he should not impose a sentence greater than that imposed on the first occasion and commented that High Court authorities suggested that he should not impose a greater sentence unless he thought the original sentence was manifestly inadequate. The judge went on to say, however, that he considered that test had been satisfied in this case, and it was therefore open to him to exercise his own sentencing discretion, which resulted in the increase in sentence referred to above.
In R v Garrett (1978)[2], the court held that it was proper to take into account the previous sentence but the second judge was not constrained in any way by it. This was considered by Martin J in R v Martin (No 6)[3]. The proper approach to sentence following a second trial was also the subject of discussion in RHMcL v The Queen[4].
[2] 80 SASR 308
[3] (1999-2000) 206 LSJS 187
[4] (2000) 203 CLR 452
In this case, understandably, the judge took a very serious view of the applicant’s offending. The sentence imposed was, however, a substantial increase upon that imposed by the judge at the first trial. In the circumstances, I think it is reasonably arguable that the judge in so doing erred and that as a result he imposed a sentence which was manifestly excessive. I therefore give leave to appeal against sentence.