The High Court has allowed an appeal involving an appellate court differing with findings of fact made by a sentencing judge. DL was convicted in 2008 of a 2005 murder involving the repeated stabbing of a teenager for no apparent motive. At his sentencing in 2008, the trial judge found that ‘there was much irrationality about what occurred’, that it was not established that DL intended to kill the teen and that he was probably acting under the influence of psychosis. Holding that the offence was less serious than the median range murder and that NSW law provided that 25 years was the standard non-parole period for a mid-range murder, he sentenced DL to a 17 year sentence with a 12 year non-parole period. At his appeal against sentence in 2016, all parties agreed that a subsequent High Court judgment disapproving of this use of standard non-parole periods meant that the Court of Criminal Appeal needed to resentence him, that subsequent sentencing law changes meant that the standard non-parole period no longer applied to him and that the Court’s resentencing could take account of new facts since the sentence. A majority of the Court of Criminal Appeal, observing that all parties had been given an opportunity to be heard on all aspects of the resentencing and finding that DL was not affected by psychosis and did intend to kill, dismissed the appeal, holding that no lesser sentence was warranted.

The joint judgment (Bell, Keane, Nettle, Gordon and Edelman JJ) unanimously allowed the appeal. The joint judgment (at [33]ff) held that the majority’s holding that all parties had been given the opportunity to be heard on resentencing was the result of two ‘misconceptions’: first, the Crown did not challenge the trial judge’s findings about the objective seriousness of DL’s offending, but rather only submitted that those findings were ‘generous’; second, the defendant did not accept that the fresh evidence could be used to revisit the trial judge’s findings of fact, but rather only that the fresh evidence could be used to assess DL’s current prospects of rehabilitation. While the Court of Criminal Appeal is not bound by the parties’ stances, its failure to put the offender on notice of an inclination to depart from those stances ‘will ordinarily be a miscarriage of justice’ (at [39].) As the Court of Criminal Appeal’s findings about the absence of psychosis (in the face of an expert continuing to maintain that DL was psychotic) and the finding of intent (given that the prosecution bears the onus of proof on aggravating factors) were controversial, the lack of notice was ‘was procedurally unfair and has occasioned a miscarriage of justice’ (at [44].)

Noting that there is no reason to consider the broader question of an appellate court’s power to substitute aggravated factual findings for unchallenged findings made by the trial judge, the joint judgment ordered the appeal remitted to the NSW Court of Criminal Appeal for resentencing, noting that the joint judgment did not express ‘any view as to whether some other (lesser) sentence is warranted in law.’