Sentencing following a retrial
[12-000] The “ceiling principle”
The “ceiling principle” is that an offender convicted of an offence after a retrial following appeal 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]; R v White [2023] NSWSC 611 at [75].
It is not an inflexible rule, but rather a prima facie approach and if a judge considers a longer sentence is appropriate, the judge is obliged to give effect to that view: R v Bedford (1986) 5 NSWLR 711 at 714; R v Merritt [2000] NSWCCA 365 at [29]; Armstrong v R [2015] NSWCCA 273 at [42]; R v Carbone [2022] NSWSC 373 at [72]. 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]. 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, reasons should be given: R v Bedford at 714; see also below at Significant circumstances warranting a higher sentence.
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 proper administration of the criminal law” by exposing defects in trials on appeal: 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. If the criminal justice system is perceived as punishing a person for successfully pursuing their right to appeal, that may thereby discourage others from doing so: R v Carbone at [72].
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 approach of the second sentencing court is to determine the sentence which should be imposed and then stand back and compare it to that which was imposed earlier to assess whether any adjustment should be made. It is not a matter of starting with the earlier sentence and then making adjustments up or down to account for subsequent events: R v Lane (No 4) [2018] NSWSC 1898 at [73].
Re-sentencing for lesser offence
The ceiling principle applies where the offender was convicted and sentenced for a lesser offence following a successful appeal against conviction: Armstrong v R. In imposing a lighter sentence for the lesser offence but a greater level of accumulation for two unrelated offences, the judge erred by failing to give reasons for not applying the ceiling principle and by regarding the earlier sentences as irrelevant: Armstrong v R at [53].
Significant circumstances warranting a higher sentence
Significant circumstances which might warrant a higher sentence include escaping from custody or committing 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] NSWCCA 124 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.