Sentencing following a retrial

[10-700] “The ceiling principle”

Where an offender is convicted of an offence after a retrial, he or she should not ordinarily receive a longer sentence or non-parole period than that imposed after the first trial, unless there is some significant circumstance to be taken into account: R v Gilmore (1979) 1 A Crim R 416 at 419; R H McL v The Queen (2000) 203 CLR 452 at [72].

This principle is not intended to fetter the independent discretion of the sentencing judge: R v Bedford (1986) 5 NSWLR 711 at 714; R v Merritt [2000] NSWCCA 365 at [29]. It is open to the judge to impose a higher sentence if the original sentence was manifestly inadequate or “remarkably lenient”: R v Merritt at [34]; R v Hannes [2002] NSWSC 1182. However, the exercise of a discretion that increases the original sentence is “necessarily rare”: R H McL v The Queen at [72]. If a longer sentence is called for, the reasons for this should be specified: R v Bedford at 714.

The policy underlying this principle is that a person whose conviction is tainted by a defective trial should not run the risk of a heavier sentence on a new trial. There is a “public interest in ensuring orderly and proper administration of the criminal law” by exposing defects in trials on appeal: R v Gilmore at 420. It is also wrong that a person should “suffer ill-founded criminal judgement … and feel constrained to avoid exposing that defect”: R v Gilmore at 420. Furthermore, the passing of a heavier sentence might appear to import an element of retribution as a consequence of the conviction on the first trial having been successfully overthrown: R v Gilmore at 420.

Significant circumstances might include escaping from custody or the committing of other offences while on bail: R v Gilmore at 419. Where there are multiple convictions, not all of which are the subject of sentencing after a retrial, it can be significant that the original sentences were modified by considerations of totality: R v Bedford at 714; R H McL v The Queen at [34], [74].

Where the findings at the retrial lead to an assessment of the offender’s culpability greater than that of the first trial judge, a heavier sentence is warranted: Tarrant v R (2007) 171 A Crim R 425 at [39]. In Tarrant v R the offender received a longer sentence after a retrial in which the Crown case was limited to joint criminal liability, whereas liability as an aider and abettor had been available to the sentencing judge after the first trial.

The ceiling principle was applied where the offender was convicted and sentenced for a lesser offence following a successful appeal against conviction: Armstrong v R [2015] NSWCCA 273. Although a lighter sentence was imposed for the lesser offence the court ordered a greater level of accumulation for two unrelated offences. A proper application of the ceiling principle requires consideration of all components of the sentence including its commencement date relative to other sentences: Armstrong v R at [66]. The court held that the judge gave no reasons for not applying the ceiling principle and fell into error by regarding the earlier sentences as irrelevant: Armstrong v R at [53].