The three defendants had originally been sentenced for murder and torture. Their convictions were overturned; verdicts of manslaughter substituted for the original convictions of murder; and the matter remitted for re-sentence. The orders for remittal did not identify the basis of the jurisdiction to be exercised by the trial division. The issues arising were: the basis of the jurisdiction to be exercised in re-sentencing; and whether sentences were to be imposed from the date of sentence, or to take effect retrospectively.
19 February 2020
At the outset, his Honour frankly observed that the sentences “involve[d] some complexities”. Despite that, he delivered the sentences ex tempore.
The source of the power to re-sentence
The basis of the jurisdiction for re-sentencing was by no means clear, and that was complicated by the fact that Counsel initially were uncertain as to what it was.
His Honour identified s 61(2) of the Supreme Court of Queensland Act 1991 as a “possible pathway to the conclusion of remitter”. It provides as follows:
“(2) If a proceeding is started in the Court of Appeal, but is a proceeding that the Court of Appeal considers could be more conveniently heard and determined in another Court—
(a) the proceeding is taken to have been duly started when it was started in the Court of Appeal; and
(b) the Court of Appeal may, on application by a party or of its own motion, order that the proceeding be remitted to the other court; and
(c) an order for remission being made under paragraph (b), the proceeding must be continued and disposed of in the other court; and
(d) subject to any order under paragraph (b), the proceeding may be continued and disposed of in the Court of Appeal.”
Subsection (3) provides:
“(3) If a proceeding is pending before the Court of Appeal, the Court of Appeal may, on application by a party or of its own motion, order that the whole or a part of the proceeding be remitted to another court for the determination (by trial or otherwise) of the proceeding or any question of fact or law arising in the proceeding.”
It was submitted by the Prosecutor that the sentencing proceedings might be an exercise of the sentencing power under s 668F(2) of the Criminal Code 1899. His Honour was initially loathe to accept that, noting that that subsection confers power on the “Court”, which is defined in s 668(1) of the Code to mean the Court of Appeal. He did however acknowledge that it was one of two possibilities “competing for acceptance”, together with the scenario that the remitter re-engages the trial division’s original jurisdiction as a sentencing court under the relevant statutes.
Whether sentences were to be imposed from date of sentence, or to take effect retrospectively
Counsel for the appellants argued that that the sentences imposed ought to operate retrospectively, that is, from the date of the original convictions. The substance of that proposition was that that would have been the case in the event the sentences had been passed in substitution for the offence of murder under s 668F(2) by the Court of Appeal.
His Honour did not agree with that reasoning, clarifying that it was not the case that he was exercising the power of the Court of Appeal by altering the sentences for existing convictions. Rather, the sentences either amounted to a fresh imposition of imprisonment under the power to pass sentence pursuant to s 668F(2) of the Criminal Code 1899, as part of an appeal remitted to the trial division, or the renewed engagement of his power in the original jurisdiction of the trial division to sentence the offenders. In either case, s 154 of the Penalties and Sentences Act 1992 would apply and the sentences he imposed would commence with immediate effect.
Formulation of the eventual sentences
In sentencing the trio, his Honour stressed the importance of three matters: first, that the sentences were to be imposed as and from the date of his order; second, that a declaration under s 159A of the Penalties and Sentences Act 1992 was necessitated; and third, that the possible operation of the principles in Mill v R  166 CLR 59, 66, be considered in arriving at appropriate terms. In that case, the wider totality principle was referred to.
His Honour proceeded on the basis that:
1) the findings of the Court of Appeal as to the facts on which the substituted convictions were based were binding upon him. See R v Richards  QCA 299, –, and particularly  and ;
2) to the extent that they were not inconsistent with the Court of Appeal’s findings, he would have regard to the findings of fact which he had made previously at the sentencing hearing;
3) with reference to s 132C of the Evidence Act 1977, he was able to make additional findings of fact where appropriate; and
4) in the event that findings conflicted with the findings of the Court of Appeal, he would act upon the findings of the Court of Appeal.
In terms of whether the notional sentences warranted a reduction to reflect the overall offending, (as per the principle in Mill v R), in circumstances where the defendants had been held in custody as well as remand for various periods, his Honour accepted that no further time was declarable under s 159A(1) since the date of the initial sentencing hearing.
One issue remained, and that was whether a serious violent offender declaration should be made in respect of one of the defendants, where his Honour had arrived notionally at a sentence that was less than 10 years. Citing R v McDougall and Collas  2 Qd R 87 (amongst copious other authority), his Honour held:
“the circumstances speak for themselves. The findings I’ve already set out that relate to Matthew Armitage’s offence constitute a serious violent offence for the purposes of a declaration under section 161B(3) of the Penalties and Sentences Act 1992, in my view.”
The declaration was accordingly made.
All three defendants were given custodial sentences of between 8 to 10 years, with declarations regarding time already served.
A de Jersey
Editor’s Note: On 18 March 2020, an application for leave to appeal against sentence was filed against this decision.