Warne v The Queen - [2020] SASCFC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
WARNE v THE QUEEN
[2020] SASCFC 124
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Hughes)
21 December 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING FOLLOWING RETRIAL OR REMITTAL
The appellant was found guilty of one count of basic assault, two counts of aggravated assault causing harm, one count of possession of a class A firearm without a licence, one count of aggravated threatening life, and three counts of aggravated assault on 1 April 2019. He was sentenced to four years and five months imprisonment with a non-parole period of three years on 26 September 2019.
The appellant appealed against these convictions. The Court of Criminal Appeal allowed the appeal against conviction in respect of one count of aggravated assault causing harm and ordered that the appellant be re-tried for this count. The Director of Public Prosecutions did not proceed with a re-trial of that count.
Since the Judge who had imposed the initial sentence had since retired, the re-sentencing process fell to a different Judge. The re-sentencing Judge approached the sentencing task afresh. The appellant was sentenced to a higher sentence of four years and nine months imprisonment with a non-parole period of three years and four months.
The appellant appealed against the re-sentencing Judge’s sentence on the following grounds:
1. That it was an error to impose a head sentence and a non-parole period that was greater than that which had been imposed prior to the appellant’s successful appeal;
2. That the sentencing Judge’s starting point was too great;
3. That the sentencing Judge erred in finding that home detention was not appropriate in all the circumstances; and
4. That the sentence is manifestly excessive.
Permission to appeal was granted by a single Judge of this Court in respect of grounds 1-2 and 4. The appellant pursued all four grounds before the Criminal Court of Appeal however he ultimately did not press ground 3.
The appellant submitted that the re-sentencing Judge should have had regard to, and not exceeded, the sentence of the original sentencing Judge, and that good reason existed to impose a lower sentence, as the scope of offending under consideration had reduced.
The respondent submitted that the re-sentencing for this Court was not bound by the outcome of the previous sentence and that the appropriate approach would be to examine whether the sentence imposed by the re-sentencing Judge was justifiable. The respondent conceded that ordinarily reasons should be provided from departing from the original sentence however this was explicable given the submissions of defence counsel, and no error in the sentence had been demonstrated.
Held per Hughes J, with Peek and Stanley JJ agreeing, the appeal is allowed and the appellant re-sentenced on the following basis:
1. It may be inferred from the submissions made to the re-sentencing Judge and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Warne v The Queen

Details

AGLC: Warne v The Queen [2020] SASCFC 124
Case: [2020] SASCFC 124
Decision Date: 21 December 2020

CaseChat Overview and Summary

The parties in this matter were the appellant, Warne, and the respondent, The Queen. The dispute concerned the sentence imposed on Warne following a retrial. The case was heard in the Supreme Court of South Australia, with Peek, Stanley and Hughes JJ presiding.

The legal issues before the Court were whether the sentencing judge had erred in her approach to sentencing following a retrial, and whether the sentence imposed was excessive. Specifically, the Court considered the principles governing a judge's discretion when resentencing an appellant after a conviction has been quashed and a retrial ordered, and whether the judge was entitled to disregard the original sentence and impose a more severe one.

The Court examined a line of authorities concerning the approach to resentencing. It noted the divergence between *R v Garrett*, which suggested a de novo sentencing exercise with an unimpaired discretion, and *R v Gilmore*, which favoured a policy that a defendant should not risk a heavier sentence on appeal. The Court also considered *R v Bedford*, which modified the *Gilmore* approach to a prima facie rule, requiring specific reasons for imposing a longer sentence. The sentencing judge in this case stated she would consider the matter afresh, having not heard the evidence at trial but having reviewed the transcript and exhibits. She described the offending as "vicious, cowardly and inexcusable," and considered factors including domestic violence, the impact on the victim, lack of remorse, personal and general deterrence, and the appellant's personal circumstances.

The Director of Public Prosecutions defended the sentencing judge's decision, arguing that her approach was orthodox and did not reveal any excess. The Court ultimately upheld the sentence imposed by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The first sentencing Judge retired. The re-sentencing process arising from the appeal against conviction fell to be undertaken by a different judge. Sentencing submissions were made on 6 April 2020. The Judge imposed a sentence of 4 years and 9 months’ imprisonment and imposed a non-parole period of 3 years and 4 months.The decision of the sentencing Judge The Judge described the events that have been set out above. Critical to the circumstances giving rise to the appeal, counsel for the appellant submitted that the Judge should “not put any reliance or weight on any of the matters set out in [the first sentencing Judge’s] Sentencing Remarks” and that the Judge was not bound by and should not use that sentence as a template for the sentencing task before her.[4] Counsel for the Director did not assist the Court with submissions on this point.[4] Transcript of proceedings on 6 April 2020 in R v Warne (DCCRM-17-947) at page 2 (lines 22-30). The Judge noted the submissions of counsel for the appellant about the role of the earlier sentencing remarks and said, “I therefore proceed to consider the matter afresh.”[5][5] Sentencing Remarks in R v Warne (DCCRM-17-947) dated 21 April 2020 at page 1 (Judge Deuter). Her Honour noted that she had not had an opportunity, as the first sentencing Judge had had, to hear the evidence at trial, but that she had instead reviewed the transcript and considered the exhibits. The Judge set out the circumstances of count 1 and, separately of count 3. These offences were on different occasions. She then described the offending that gave rise to counts 4 to 8 inclusive, which occurred over a 2 day period. Her Honour noted that the offences did not occur in isolation but arose against the background of domestic violence over a period of nearly 12 months, and described the impact of the offending on the victim. The Judge also referred to the appellant’s lack of remorse as a factor relevant to the sentencing exercise. Her Honour canvased the appellant’s submission, through counsel, that the victim had at times been the instigator of violent acts directed at the appellant as evidence of a relationship characterised by disharmony. Counsel for the appellant also raised the physical capabilities of the victim, which the Judge did not find to lend support for any factor favouring leniency. The Judge described the appellant’s behaviour as “vicious, cowardly and inexcusable”.[6] Her Honour referred to the need for personal and general deterrence. Her Honour set out the appellant’s personal circumstances including his positive employment history and his antecedents which were minor and historical. Her Honour noted the content of various character references but did not find them of assistance except insofar as they indicated honesty in the workplace.[6] Ibid at page 7. Her Honour acknowledged that there had been methamphetamine use within the relationship and that it was part of the backdrop to the offending. Her Honour was reluctant to endorse the appellant as a good candidate for rehabilitation given his lack of contrition and the fact that he had only addressed drug addiction in prison, and not the causes of his violent behaviour. The Judge also referred to the factors of denunciation, deterrence, punishment and protection of the community.[7] Having done so, her Honour rejected the appropriateness of a suspended sentence.[7] Ibid at page 9.

Ratio Decidendi

Legal Principle Established

The Director defended the Judge’s sentence, addressing grounds 2 and 4 compendiously with submissions directed at establishing that the factors taken into account by the Judge, and their consideration, was undertaken in an orthodox manner that revealed no excess.Consideration In R v Baltensperger, Bleby J canvassed the authorities in order to address the dissonance between the earlier decisions of the Court in R v Garrett[12] and R v Pahuja (No 2).[13] In R v Garrett the Court, in answer to a question reserved, stated that the nature of the task of a judge on a re-sentencing is to determine the matter de novo.[14] Wells J described the re-sentencing judge as retaining an “unimpaired” discretion to impose a just sentence.[15] This approach was subsequently not followed by the Full Court of New South Wales in R v Gilmore[16] in which the Court referred to policy reasons that led to the view that the re-sentencing judge should not impose a sentence that exceeded the earlier sentence. Those policy reasons, not referred to in R v Garrett, are that a defendant ought not risk the imposition of a heavier sentence as a consequence of appealing a defect in the trial and further, that there ought be no risk that the community would apprehend a heavier sentence on a re-sentence as the Court’s response to the defendant’s exercise of the right of appeal.[17] Street CJ modified the position expressed in R v Gilmore upon further considering the issue in R v Bedford,[18] describing it as a prima facie approach rather than a principle and stating that the re-sentencing judge is not absolutely fettered by the earlier sentence but rather obliged to give effect to his or her own sentencing discretion. Where a longer sentence is imposed, his Honour recommended providing a “specific indication of the reasons” therefor.[19] [12] (1978) 18 SASR 308.[13] (1989) 50 SASR 551.[14] R v Garrett (1978) 18 SASR 308, 313 (Hogarth ACJ and White AJ).[15] Ibid at 316.[16] (1979) 1 A Crim Rep 416.[17] Ibid at 419-420 (Street CJ).[18] (1986) 5 NSWLR 711.[19] Ibid at 713-714. This Court then considered the issue in R v Pahuja (No 2)[20] in which, after a second trial, the re-sentencing judge reduced the defendant’s sentence. White J said that the re-sentencing judge was not obliged to impose the same sentence as had followed the first trial if convinced that it was manifestly excessive or inadequate, but that the re-sentencing judge would otherwise “have regard to and generally order the same sentence.”[21][20] (1989) 50 SASR 551.[21] Ibid at 562. In R v Martin (No 6),[22] Martin J was required to consider the appropriate non-parole period to impose on a prisoner who had been convicted of murder for the third time. After reviewing the authorities of Garrett, Gilmore and Bedford, Martin J 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.”[23][22] (2000) 109 A Crim R 508; [2000] SASC 9.[23] Ibid at [13]. Also referred to in, R vBaltensperger (2006) 96 SASR 34; [2006] SASC 246 at [145] (Vanstone J).