The High Court has dismissed an appeal against a sentencing decision of the New South Wales Court of Criminal Appeal after it allowed an appeal against sentence because of errors in the characterisation of aggravating factors. The appellant was convicted of attempted murder and kidnapping following a murder-suicide attempt on his former partner, in which he repeatedly stabbed her over a prolonged period of time, and sentenced to 16 years imprisonment with a non-parole period of 11 years. On appeal, the NSWCCA rejected the appellant’s arguments that his offence was not aggravated by the extent of the injuries he inflicted, and that it was mitigated by his own extensive self-injuries, but did accept that two grounds of appeal were made out: that the trial judge erred in finding that the victim’s vulnerability (as defined in s 21A(2)(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) was an aggravating factor (see [NSWCCA, 28]]ff), and in finding that the effect of the appellant’s injuries were only relevant to special circumstances and thus could only affect the term served in the non-parole period, rather than the head sentence (see [NSWCCA, 36, ]ff). Despite succeeding on these grounds, however, the NSWCCA still held that the 16 year sentence was appropriate given the horrific nature of the offence (see [NSWCCA, 48]).

Before the High Court, the appellant sought to challenge the NSWCCA’s treatment of new evidence in re-exercising the sentencing discretion. The new evidence included certificates showing that the appellant had completed courses since his sentencing, which the NSWCCA took account as evidence going to rehabilitation. However, the new evidence also included reports by a psychiatrist and a psychotherapist, drawing on new interviews with the appellant, concerning what caused him to attack his ex-partner. The NSWCCA considered those reports only to the extent that they showed the appellant’s ability to ‘develop’, a matter which had ‘limited weight’, but otherwise refused to take them account on the causes of the crimes, as the appeal did not provide ‘an opportunity for a second bite of those issues’ [NSWCCA, 47].

The unanimous Court (French CJ, Kiefel, Bell, Gageler & Gordon JJ) rejected the appellant’s broadest argument, which was that an appeal court that resentences after a finding of error by the sentencing judge, should not apply the rules on the reception of fresh evidence. The Court rejected the appellant’s analogy to the position of an accused who faces a new trial (where he or she can proceed in a way that differs from the previous trial) as ‘hardly apt’, holding that ‘[j]ustice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence.’ [13]-[14].The Court accepted that appeal courts have the power to receive new evidence in the interests of justice, but held that ‘the interests of justice will not usually be served by the reception of new evidence of matters that are the subject of the sentencing court’s unchallenged factual findings’ [16]. The Court noted that the further question of whether an appeal court can apply its general power to remit sentencing to a lower court is ‘controversial’, because that may conflict with the terms of the criminal appeal statute. [17]-[18]. Although ‘[t]he utility of a power of remitter in a case… where the sentence hearing has been tainted by procedural irregularity, is evident’, [t]he question of whether it is available is not reached in this case. It might be a matter for consideration by the legislature.’ [19].

The Court addressed the appellant’s narrower argument (that the failure to consider the new evidence was erroneous in this particular case) by reviewing the facts and lower court proceedings in detail. The Court held that the psychiatrist’s conclusion – that the appellant’s ‘intoxication with a drug with unpredictable mind altering effects, together with an underlying emotional state shaped by violence and sexual abuse, and a pattern of substance use, was a significant contributing factor to his sudden decision to end his life and to his offending behaviour’ – was inconsistent with the appellant’s stance at trial (that there was no evidence of the cause of the crimes) and on appeal (that the offences were committed in jealous rage and were not the product of his history of abuse or drug use) [55]-[58]. The Court also accepted the respondent’s submission that the new report contradicted the agreed facts as to how long the crimes took and the appellant’s conduct in sending texts to prevent interruptions [58].

The Court concluded:

The appellant’s case before Judge Toner was not that his ingestion of DMT had significantly contributed to his offending. The forensic choice that was made was to accept responsibility for the offences. Nothing in the new evidence supports the submission that the Court of Criminal Appeal’s refusal to permit the appellant to run a different case before it has occasioned a miscarriage of justice. [59]

Accordingly, the appeal was dismissed and the appellant’s 16 year sentence stands.