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10
Court of Criminal Appeal 1 November 2002

R v MM

[2002] NSWCCA 431

Also reported as (2002) 135 A Crim R 216
Sexual offencesAssault & violence
CRIMINAL LAW PROCEDURE SENTENCING NEW TRIAL CONVICTED OF 11 OFFENCES SAME OVERALL SENTENCE IMPOSED

Citation: R v MM [2002] NSWCCA 431
Court: NSW Court of Criminal Appeal
Date: 1 November 2002
Judges: Levine J, Hidden J, Howie J

Background

The applicant was first convicted in the District Court on 14 charges, 13 of which were sexual offences against a child, with the 14th being assault occasioning actual bodily harm. Those convictions were quashed on appeal, and a retrial was ordered. At the retrial, the applicant was convicted of 11 of the original 14 offences, with the jury returning not guilty verdicts on three counts (including the assault charge and two sexual offences).

The sentencing judge at the retrial, Coolahan DCJ, imposed the same concurrent sentences for each of the 11 remaining offences as had originally been imposed for those same counts. The overall effective sentence remained 8 years imprisonment with a non-parole period of 6 years, unchanged from the first trial.

The applicant sought leave to appeal against those sentences, arguing that the identical overall sentence amounted to an effective increase given that three counts had fallen away. The core contention was that the sentencing judge had, without good reason, imposed higher operative sentences on the remaining 11 counts than warranted when viewed against the original sentencing structure.

  • Whether imposing identical sentences on 11 remaining counts, after acquittal on 3 counts at retrial, constituted an effective "increase" in sentencing contrary to established principle.
  • Whether the sentencing convention against increasing sentences on retrial applied in these circumstances.
  • Whether the sentencing judge gave adequate reasons for departing from any prima facie expectation of a reduced overall sentence.

Decision

The Court granted leave to appeal but dismissed the appeal. Levine J (with Hidden J and Howie J agreeing) traced the relevant sentencing convention through a series of authorities, beginning with Street CJ's decision in R v Gilmore (1979). That case established that, as a matter of sound principle, an offender should ordinarily not receive a longer sentence on retrial following a successful appeal against conviction. The rationale is twofold: deterring offenders from exercising their legitimate right to appeal, and avoiding any appearance of retribution by the criminal justice system.

However, the Court confirmed that the convention is not an absolute rule. As the Court of Criminal Appeal had noted in R v Bedford (1986), the word "ordinarily" in the Gilmore formulation must be given full effect. The sentencing judge on retrial retains the capacity to impose a higher sentence where the particular circumstances call for it, provided reasons are given.

In this case, the sentencing judge's reasoning was found to be sound. Both parties at the retrial accepted that the sentences originally imposed by Job DCJ were appropriate. Coolahan DCJ found that Job DCJ had sentenced the applicant not in respect of wholly isolated individual acts of criminality but against the broader contextual background in which all offences were committed. Because the operative head sentence of 8 years and non-parole period of 6 years had been calibrated to that overall context, the three acquitted counts did not require a reduction in the remaining sentences. The identical sentencing outcome was therefore justified.

The Court also considered whether the concurrency structure meant that the practical effect of the retrial sentences was an increase on the individual counts for which there had been convictions at both trials. This argument was rejected. The sentences on each count remained the same, and the overall effective sentence was unchanged. No error of principle was identified in the sentencing judge's approach.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed the established convention that, on retrial following a successful appeal against conviction, a sentencing court should ordinarily not impose a longer sentence or non-parole period than that imposed at the original trial.
  • The principle from R v Gilmore is not absolute. The word "ordinarily" leaves room for departure where the circumstances of the case call for a longer sentence, provided the sentencing court gives reasons.
  • Where both parties accepted the original sentences as appropriate, and the original sentencing judge had structured concurrent sentences by reference to the overall context of offending rather than treating each count in isolation, a sentencing court on retrial was entitled to impose identical sentences despite acquittals on some counts.
  • Imposing the same sentence on fewer counts does not automatically constitute an "increase" where the overall effective sentence remains unchanged and the concurrent structure reflects the holistic nature of the original sentencing exercise.
  • Under the relevant authorities, the underlying policy concerns are twofold: offenders should not be deterred from appealing against defective convictions, and the justice system should not give any appearance of punishing those who succeed on appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v MM [2000] NSWCCA 78 (the prior appeal leading to retrial)
- R v Gilmore (1979) 1 A Crim R 416
- R v Bedford (1986) 5 NSWLR 711
- Griffiths v The Queen (1989) 167 CLR 372
- Campbell v The Queen; Baker v The Queen [1996] FCA 1
- Pearce v The Queen (1998) 194 CLR 610
- R H McL v The Queen (2000) 203 CLR 452
- Regina v Merritt [2000] NSWCCA 365
- Regina v Mitchell [2002] NSWCCA 380