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Supreme Court 28 May 2004

REGINA v. ROBINSON

[2004] NSWSC 465

Homicide
CRIMINAL LAW SENTENCING MURDER CONVICTED ON RE TRIAL AFTER SUCCESSFUL APPEAL APPLICATION OF POLICY IN GILMORE

Citation: REGINA v. ROBINSON [2004] NSWSC 465 revised - 10/06/2004
Court: Supreme Court of New South Wales, Criminal Division
Date: 28 May 2004
Judge(s): Greg James J

Background

The offender was convicted by jury of the murder of a man at Junee, New South Wales, on 17 September 1998. He had previously been convicted of the same offence at a trial in April 2000 before Barr J, who sentenced him to 22 years imprisonment with a non-parole period of 15 years, commencing 12 December 1999.

The offender successfully appealed that conviction, leading to a retrial. The retrial concluded on 12 March 2004 with a second jury returning a guilty verdict on the same murder charge.

The sentencing court was then required to resentence the offender following his second conviction. Both the Crown and the defence accepted that the original sentence imposed by Barr J was appropriate as a starting point, subject to any relevant change in circumstances.

  • Whether the head sentence and non-parole period imposed at the original sentencing should be adopted at resentencing after a successful appeal and retrial
  • What role the principle of sentencing consistency plays when the same offender is sentenced for the same offence by a different judge on retrial
  • Whether any change in circumstances, specifically the offender's prospects of rehabilitation since the original sentence, warranted a departure from the original non-parole period
  • How the amended s 21A of the Crimes (Sentencing Procedure) Act 1999 (which came into force on 1 February 2003, after the original sentencing) affected the resentencing exercise

Decision

Both parties agreed that Barr J had correctly addressed all relevant sentencing factors at the original hearing, subject to one exception: evidence concerning the offender's rehabilitation prospects that had emerged since that time. The court accepted that the amended s 21A had introduced a more structured framework for aggravating and mitigating factors, but found that this change in the statutory regime did not, of itself, require a different outcome.

Greg James J applied the principle of sentencing consistency, drawing on the High Court's observations in Lowe v The Queen (1984) 154 CLR 606 that inconsistency in sentences bears the "badge of unfairness." The court also referred to its own approach in the unreported decision of Regina v Harrison & Georgiou (19 December 2003), which had addressed the same question of appropriate sentences following retrial after a successful appeal.

The court determined that the head sentence of 22 years should remain unchanged, consistent with the original sentencing. However, a report from a rehabilitation officer (Mr Metcalf) provided fresh evidence of improved prospects of reform since the original sentence was imposed. The court held that this material constituted a sufficient distinguishing circumstance to justify a reduction in the non-parole period.

Applying the principle from Gilmore (1979-80) 1 ACR 416, which addressed the policy underpinning non-parole periods as the minimum term an offender must serve, the court found special circumstances (including those identified by Barr J and the fresh rehabilitation evidence) and reduced the non-parole period by 12 months, from 15 years to 14 years.

Orders Made

  • The offender was sentenced to imprisonment for 22 years, commencing 12 December 1999 and expiring 11 December 2021
  • Non-parole period set at 14 years
  • Earliest eligible date for release on parole: 11 December 2013

Key Takeaways

  • Where an offender is resentenced after a successful appeal and retrial, the principle of sentencing consistency strongly favours adopting the original sentence as the starting point, absent a sufficient distinguishing circumstance.
  • A change in circumstances arising after the original sentencing, such as materially improved prospects of rehabilitation, can constitute a sufficient basis to depart from the original non-parole period even where the head sentence remains the same.
  • Under the policy articulated in Gilmore, the non-parole period represents the minimum time an offender must serve, distinct from the full head sentence. This distinction supports adjusting the non-parole period independently of the total term where rehabilitation evidence warrants it.
  • Inconsistency between sentences for the same offence passes what the High Court in Lowe v The Queen described as the "badge of unfairness," underscoring that consistency is a core sentencing principle even when different judges are involved.
  • The introduction of an amended s 21A of the Crimes (Sentencing Procedure) Act 1999 between the original sentencing and the retrial did not, in the circumstances of this case, require a materially different sentencing outcome.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (as it stood in 2000 and as amended from 1 February 2003)

Cases
- Gilmore (1979-80) 1 ACR 416
- Bedford (1986) 5 NSWLR 711
- Lowe v The Queen (1984) 154 CLR 606
- Regina v Harrison & Georgiou (unreported, 19 December 2003)