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Court of Criminal Appeal 8 June 2007

Tarrant v Regina

[2007] NSWCCA 124

Also reported as (2007) 171 A Crim R 425
Homicide
CRIMINAL LAW: MURDER OFFENDERS SENTENCE AFTER RETRIAL

Citation: Tarrant v Regina [2007] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 8 June 2007
Judge(s): Hidden J, Bell J, Johnson J

Background

The applicant was one of three co-offenders convicted of murder following a violent assault on a man at his home in Katoomba in August 2001. The victim died from blunt trauma to the neck, and the scene indicated a sustained, multi-participant attack involving a cricket bat and knives. All three offenders had previously been convicted at a first trial, but those convictions were set aside and a retrial was ordered.

At the original sentencing, the first trial judge imposed a lesser sentence on the applicant than on her two co-offenders. That disparity reflected a finding that the applicant's role was relatively minor, supported in part by the Crown prosecutor's position at the time. At the retrial before a different judge, all three offenders were sentenced equally, resulting in the applicant receiving a longer sentence than she had after the first trial.

The applicant sought leave to appeal against the retrial sentence. She argued that the increased sentence was not justified and that the sentencing judge had denied her procedural fairness by imposing a heavier term without adequately forewarning the parties that this outcome was under consideration.

  • Whether the sentencing judge at the retrial was entitled to reach a different conclusion about the applicant's role than the first trial judge had, resulting in a heavier sentence.
  • Whether the applicant was denied procedural fairness because the possibility of a heavier sentence was not sufficiently foreshadowed during sentencing submissions.
  • Whether the principles governing re-sentencing at a retrial precluded the outcome reached by the sentencing judge.

Decision

At the first trial, the judge had treated the applicant's role as less significant than that of her co-offenders, in part because the Crown prosecutor had not suggested her palm print on the cricket bat indicated she was the principal offender. At the retrial, the circumstances differed: one co-offender had conceded a greater degree of responsibility, and the case was not put to the jury on the alternative basis of aiding and abetting. The retrial judge found she could not distinguish the roles of the three offenders on the evidence before her and sentenced all three equally.

The Court of Criminal Appeal held that the retrial judge was not bound by the findings or approach of the first sentencing judge. The different factual findings at the retrial, based on different evidence and different submissions, provided a legitimate basis for the changed outcome. The applicant's heavier sentence was not the product of error.

On the procedural fairness question, the Court found that the sentencing judge had in fact raised the difficulty during submissions, explicitly telling counsel that she could not find any evidentiary basis for distinguishing the roles of the three offenders. The transcript showed she had signalled that Hulme J's lower sentence for the applicant had been based on a finding of lesser role that she herself could not make. That was sufficient notice. There was no denial of procedural fairness.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge at a retrial is not bound by the factual findings or sentencing approach of the judge at the original trial, particularly where the evidence and submissions at the retrial differ materially.
  • Where the retrial evidence does not permit the sentencing court to distinguish one co-offender's role from those of others, equal sentences across co-offenders may be open even if the original sentence had treated that offender more favourably.
  • Procedural fairness does not require a formal warning in any prescribed form; it is satisfied where the sentencing judge clearly raises, in the course of submissions, the possibility that a particular outcome is under consideration.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a heavier sentence on retrial is not impermissible as a matter of principle, provided it flows from genuine differences in the findings available to the sentencing judge.
  • The principle that an offender convicted after retrial should not be disadvantaged by that process does not operate to freeze the sentencing outcome at the level reached after the original trial.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Gilmore (1979) 1 A Crim R 416
- R v Bedford (1986) 5 NSWLR 711
- R H McL v The Queen (2000) 203 CLR 452
- Williams v The Queen (No 2) [1982] WAR 281
- R v Chen [1993] 2 VR 139
- R v Petersen [1999] 2 Qd R 85
- R v MM (2000) 135 A Crim R 216
- R v Hannes [2002] NSWSC 1182
- R v Merritt (No 2) [2000] NSWCCA 365
- R v Olenik [2002] NSWCCA 90
- R v Khouzame [2000] NSWCCA 505
- Fairbairn v Regina (2006) 165 A Crim R 434