Warne v The Queen

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.