Joel Betts(Appellant) v The Queen

• Jurisdiction: Australia Federal only
• Judge: French CJ,Kiefel,Bell,Gageler,Gordon JJ
• Judgment Date: 15 June 2016
• Neutral Citation: [2016] HCA 25
• Docket Number: S281/2015
• Court: High Court
• Date: 15 June 2016

[2016] HCA 25

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Bell, Gageler AND Gordon JJ

S281/2015

Joel Betts

Appellant

and

The Queen

Respondent

Representation

S J Odgers SC with P D Lange for the appellant (instructed by Murphy's Lawyers)

L A Babb SC with N L Williams for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3), 12.

Betts v The Queen

Criminal law – Sentencing – Where appellant appealed against severity of sentences – Where additional material produced by appellant admitted on ‘usual basis’ that it may be taken into account if appellate court came to re-sentence – Where additional material contained evidence inconsistent with appellant's case at sentence hearing – Where appellate court found error, engaged in re-sentencing appellant and refused to take into account additional material – Whether miscarriage of justice occasioned.

Words and phrases – ‘fresh evidence’, ‘miscarriage of justice’, ‘power of remittal’, ‘re-sentencing discretion’, ‘supplemental powers’, ‘usual basis’.

ORDER

Appeal dismissed.

1 French CJ, Kiefel, Bell, Gageler AND Gordon JJ. This appeal is concerned with the exercise of the appellate court's sentencing discretion under the common form criminal appeal provisions. Is the appellate court's assessment of whether some other sentence is warranted in law made on the evidence that was before the sentencing court, or does the exercise of the sentencing discretion afresh 1 require a hearing de novo at which new evidence of the circumstances of the offence, and the causes of the offending, is to be received?

2 As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry.

Procedural history

3 The appellant pleaded guilty in the District Court of New South Wales to wounding the complainant with intent to murder 2 and detaining the complainant without her consent with intent to obtain a psychological advantage and, immediately before the detaining, occasioning actual bodily harm to her 3. On 18 May 2012, the appellant was sentenced to a non-parole period of 11 years' imprisonment with a total sentence of 16 years for the offence of wounding with intent to murder, and to a concurrent fixed term of eight years' imprisonment for the detaining offence.

4 The appellant appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales (Meagher JA, Hidden J and RS Hulme AJ) against the severity of the sentences on grounds which contended error in the application of sentencing principle; none of the grounds challenged Judge Toner's factual

findings. A folder of material was handed up at the commencement of the hearing in the Court of Criminal Appeal on the basis that it would be admissible in the event that the Court came to re-sentence the appellant. The prosecutor did not object to the Court receiving the material ‘on the usual basis’. The material included reports by Dr Nielssen, a psychiatrist, and Mr Roberts, a psychotherapist. The Court of Criminal Appeal upheld two of the grounds of appeal but dismissed the appeal, having determined that no lesser sentence was warranted in law 4. The Court of Criminal Appeal declined to take into account the opinions in Dr Nielssen's and Mr Roberts' reports concerning the factors that had caused or contributed to the commission of the offences. The Court held that the sentence hearing had been the occasion to address these matters and the appeal did not provide ‘an opportunity for a second bite of those issues.’ 5

5 On 11 December 2015, Kiefel, Bell and Gageler JJ granted the appellant special leave to appeal. The sole ground of appeal is that the Court of Criminal Appeal erred in failing to take into account new evidence bearing on the causes of the appellant's offending in determining whether a less severe sentence was warranted in law 6. The appellant's broad case is that the Court of Criminal Appeal wrongly confined its discretion, which he sources in s 12(1) of the Criminal Appeal Act 1912 (NSW) (‘the CAA’). He submits that, once error was identified and the Court of Criminal Appeal turned to consider re-sentencing, there was little or no room to apply the restraint that governs the reception of new evidence on the hearing of the leave application or the appeal 7.

6 The appellant accepts that, had the Court of Criminal Appeal taken the new evidence into account, it would have been necessary to resolve inconsistencies between the opinions expressed therein and the opinions expressed in other evidence on which he relied at the sentence hearing. He submits that the proper exercise of the Court of Criminal Appeal's discretion was

to remit the proceeding to the District Court under s 12(2) of the CAA. He seeks orders in this Court setting aside the orders of the Court of Criminal Appeal, quashing the sentences imposed by Judge Toner and remitting the proceeding to the District Court.

7 The Court of Criminal Appeal was not asked to remit the proceedings to the District Court. For that reason, their Honours were not required to consider whether the general power conferred by s 12(2) applies to the determination of an appeal under s 6(3). For the reasons to be given, the appeal must be dismissed. In this circumstance, and given that the question was not raised below, it is inappropriate to determine whether the Court of Criminal Appeal is empowered to remit the determination of an offender's sentence to the court of trial.

8 The contention that, as a general rule, the appellate court when exercising its sentencing discretion is not confined to the material before the sentencing court is contrary to principle. This conclusion does not dispose of the appellant's narrower case, which is that, in the particular circumstances, the refusal to take into account new evidence casting light on the causes of his singular offending has resulted in a miscarriage of justice. It will be necessary to refer in some detail to the facts and the conduct of the appellant's case below in order to explain why this case must also be rejected. Before doing so, there should be reference to the principles governing the reception of new evidence on the determination of appeals under s 6(3) of the CAA. In light of the parties' submissions, there should also be some reference to the powers of the Court of Criminal Appeal in determining such appeals.

The determination of appeals under s 6(3)

9 Section 5(1)(c) of the CAA confers on a person convicted on indictment a right to appeal by leave of the Court of Criminal Appeal against the sentence passed on the person's conviction. Where leave is granted, the determination of an offender's appeal is governed by s 6(3):

‘[T]he court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.’

10 Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King8 is established 9. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence 10. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence 11. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence 12. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice 13.

11 It is accepted, however, that the appellate court may receive evidence of the offender's progress towards rehabilitation in the period since the sentence hearing 14. Evidence of this description is routinely received by the Court of Criminal Appeal on the limited basis that it may be taken into account in the

event the Court comes to re-sentence 15. It is evident that the Court of Criminal Appeal treated the material tendered on the appellant's behalf as having been admitted on this limited basis 16.

12 The appellant's argument accepts that the restraint exercised by the Court of Criminal Appeal in receiving new evidence on the hearing of a sentence appeal is an aspect of the principled administration of adversarial criminal justice. He contends that the same consideration loses its force once error is shown and the appellate court is itself engaged in the exercise of the sentencing discretion. At this stage, so the argument goes, the issue is simply whether the new evidence is admissible and whether it has the potential to affect the determination of the appropriate sentence. A submission along the same lines was rejected in R v Deng, in...