The Queen v Petersen[1998] QCA 65

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 482 of 1997

Brisbane

[R v. Petersen]

THE QUEEN

v.

BARRY ERIC PETERSEN

(Applicant) Appellant

Fitzgerald P

McPherson JA

Dowsett J

Judgment delivered 21 April 1998.

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL  ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF A SENTENCE OF 12 YEARS IMPRISONMENT WITH RECOMMENDATION FOR PAROLE AFTER SERVING 4½ YEARS IMPOSED.

CATCHWORDS: CRIMINAL LAW - sentence - re-trial - whether sentencing Judge erred in imposing a heavier sentence than that imposed at the conclusion of the first trial - consideration of proper approach to be adopted by Judges sentencing persons at a re-trial where sentence imposed at first trial has been set aside on appeal.

R v. Garrett (1978) 18 S.A.S.R. 308 -

Gilmore v. R. (1979) 1 A.Crim.R. 416  -

Williams v. R. [1982] W.A.R. 281 -

R. v. Bedford (1986) 5 N.S.W.L.R. 711 -

R v. Chen (1993) 66 A.Crim.R. 154.

Counsel:  Ms D. Richards for the applicant/appellant

Mr M.C. Chowdhury for the respondent

Solicitors:  Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing date:  6 April 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 21st day of April 1998

The applicant pleaded guilty to the manslaughter of one Nicholas Michael Paul Kummer, which offence occurred on 17 December 1993.  The applicant and a number of others went to the home of the deceased and there discharged firearms, killing him. Because of the attitude taken by the Crown in this matter, it is not necessary to say any more about the facts.  On 12 December 1997, the applicant was sentenced to imprisonment for a period of 15 years with a recommendation that he be considered for parole after 7 years. He  was born on 14 August 1974 and so was 19 years of age at the time of the offence and 23 at the time of sentence. He has a criminal record of drug-related offences, minor offences of dishonesty and some “street” offences.

The applicant was initially charged with murder and on 17 May 1995, he was  convicted of manslaughter. Prior to the trial, he had offered to plead guilty to manslaughter, but the Crown declined to accept the plea. The verdict was upset on appeal and a new trial ordered. The new trial was deferred pending the decision of the High Court in an outstanding appeal. That decision was handed down on 3 June 1997. The applicant again offered to plead guilty to manslaughter, and the Crown accepted the plea, resulting in the sentence which is the subject of this application..

Upon his first conviction, the appellant was sentenced to imprisonment for a period of 12 years. A significant factor in arriving at that sentence was the fact that a co-accused had been sentenced to a similar period of imprisonment. The learned sentencing Judge considered that parity was desirable. In the subsequent appellate process, that accused was acquitted. Thus, when the appellant again came before the court on 12 December 1997 and entered a plea of guilty to manslaughter, the sentence of the co-offender was no longer extant. Proceedings at the second hearing focussed upon the weight to be given by the second sentencing Judge to the earlier sentence. That has also been the focus of submissions before this court. His Honour was of the view that he should approach the matter unfettered by, but giving appropriate weight to the earlier sentence, having particular regard to the decisions in R. v. Garrett (1978) 18 S.A.S.R. 308, Gilmore v. R. (1979) 1 A.Crim.R. 416 at 419; Williams v. R. [1982] W.A.R. 281 at p. 283, R. v. Bedford (1986) 5 N.S.W.L.R. 711 and R. v. Chen (1993) 66 A.Crim.R. 154. These cases demonstrate varying attitudes to this problem. In Garrett, the Supreme Court of South Australia held (per Hogarth ACJ and White AJ) at p. 313, that in such a case, the second Judge:-

“... must approach the case as one coming before him de novo. It would be wrong for him to regard himself as in any way bound by what had occurred at the previous trial, or limited in the exercise of what after all is a discretionary power, the determination of what is a proper sentence. Of course, it is proper for him to have regard to the opinion of the trial Judge at the first trial; but the facts which emerged before the courts at the two trials may have varied in some significant respect. Almost certainly they will have varied to some extent. Even if they have not varied to any significant extent, the trial Judge at the second trial must do what he himself thinks proper in all the circumstances; one of those circumstances being that he has the advantage of knowing what another Judge thought of the same or similar facts, that is to say the facts which emerged at the first trial. But in the end, it is he, and he alone, who is responsible for deciding what is a proper sentence.”

In Williams, the Full Court of Western Australia considered the question. At p. 283,  Burt CJ said:-

“In my opinion the trial Judge following upon a conviction on a re-trial must, when he comes to sentence, exercise his own judgment and his own discretion. He will do that having regard to the offence committed; to the circumstances of its commission; to the antecedents of the convicted person and to all other relevant facts which are personal to him. In addition he will have regard to the sentence imposed upon the first conviction and he will be conscious of the principle, so-called ‘that unless there is some strong ground there should not be a disparity passed (sic) between the sentence imposed upon persons convicted on the second occasion after a re-trial compared with those that were imposed upon them on the first occasion.’: See Leary v. R. Court of Criminal Appeal, 18 August 1975, per Jackson CJ.”

Burt CJ then cited, with apparent approval, the following statement of Street CJ in R v. Gilmore (1979) 1 A. Crim. R 416 at p. 419:-

“The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill-founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.

In the second place, the passing of a heavier sentence on a new trial could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But, at the same time, it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature.”

Burt CJ continued at p. 284:-

“But if having had regard to the first sentence and to the policy considerations to which I have referred, as the trial Judge in this case did, and to all other facts relevant to sentence, the sentencing Judge is of the opinion that the sentence passed following upon the first conviction was inadequate or inappropriate, then he must act upon that opinion because it is, at that point, his judgment which is decisive; and it is a judgment which he must make and act upon. It would, I think, be wrong for him to say:-‘In my judgment the first sentence is altogether inadequate or inappropriate but nevertheless it was a sentence imposed and therefore I will impose it again.’”

In Bedford, the Court of Criminal Appeal endorsed the approach taken in Gilmore, saying that the general proposition there discussed established a “prima facie” approach. The court, however, considered that there might well be circumstances justifying a departure from that approach, including a conclusion on the part of the second sentencing Judge that the prisoner had been treated in an unduly lenient way on the first occasion. In Chen, the Court of Criminal Appeal adopted the reasoning in Bedford and in Williams.

We consider that where an offender is to be re-sentenced following a successful appeal and re-trial, the second sentencing Judge should start with the proposition that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. If minded to depart from that approach, he or she should consider the powerful policy considerations outlined above. Only if the second sentencing Judge concludes that the earlier sentence was outside the appropriate range, or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based, should he or she impose a heavier sentence.              

In the present case, it is conceded by counsel on behalf of the Crown that the sentence imposed on the second occasion was, in any event, beyond the appropriate range and therefore, quite apart from the question of principle to which we have referred, the court must intervene. It is common ground that the sentence originally imposed was within such a range. A perusal of the cases to which we have been referred indicates that a sentence of 12 years is entirely consistent with them. We would grant leave to appeal, set aside the sentence and substitute a sentence of 12 years' imprisonment. There is another matter which must be considered. It seems that the first sentence was passed without regard to the fact that the applicant had offered to plead guilty before the commencement of his trial. It is not clear whether this matter was brought to the attention of the sentencing Judge on that occasion. It seems likely that it was not. We consider that there should be a recommendation for early parole. We recommend that the applicant be considered for parole after serving a period of 4½ years.