Betts v The Queen [2016] HCA 25: Sentencing New Evidence
Wednesday 15 June 2016 @ 11.52 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research
In Betts v The Queen [2016] HCA 25 the High Court of Australia has today (15 June 2016), in a unanimous decision, dismissed an appeal from a decision of the NSW Court of Criminal Appeal (see [2015] NSWCCA 39).
In so doing the High Court has held that the general rule:
“. . . that 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 post-sentence conduct “
. . . was applicable to the appellant's case. In doing so, the High Court observed that the general rule did not deny that an appellate court has “. . . the flexibility to receive new evidence where it is necessary to do so to avoid a miscarriage of justice”.
Background
In May 2012, Betts (the appellant) was sentenced by Toner DCJ (District Court of NSW 2010/95238), for wounding his ex-girlfriend with intent to murder her, a breach of section 27 of the Crimes Act 1900 (NSW) (the Crimes Act). He was also sentenced for detaining her without consent with the intent of obtaining an advantage, namely a psychological advantage, and immediately before the detaining actual bodily harm was occasioned to her contrary to section 86(2B) of the Crimes Act. The offences themselves occurred when the appellant and his ex-girlfriend were alone at the apartment that they formerly shared in April 2010. It was common ground that the ex-girlfriend received multiple stab wounds during the attack, while the appellant himself was also badly injured. After allowing a 10% discount for the appellants’ guilty pleas, Toner DCJ sentenced the appellant to an effective term of 16 years imprisonment, with a non-parole period of 11 years. The appellant was also sentenced to a concurrent eight year term of imprisonment for the detaining offence.
On Appeal to the NSW Court of Appeal
The appellant appealed to the NSW Court of Criminal Appeal (see Betts v R [2015] NSWCCA 39 (24 March 2015)) against the severity of the sentences, where, at the commencement of the hearing in the NSW Court of Criminal Appeal, the appellant produced a folder of additional material “. . . 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 additional material ". . . on the usual basis". The additional material included a report by a psychiatrist who was of the opinion that:
“. . . the appellant’s intoxication with a hallucinogenic drug, together with an underlying emotional state shaped by violence and sexual abuse in childhood, and a pattern of substance use, significantly contributed to his offending behaviour”.
Having found error in the trial judge's application of sentencing principle, the NSW Court of Criminal Appeal turned to consider the exercise of its sentencing discretion and declined to take into account the psychiatric opinion in the additional material, concerning factors that may have caused or contributed to the commission of the offences, determining that the sentence hearing had been the time to address these matters.
On Appeal to the High Court
By grant of special leave, the appellant appealed to the High Court on the ground that:
"The NSW Court of Criminal Appeal, when determining whether a less severe sentence than that originally imposed was warranted, erred in failing to take into account new evidence bearing on the causes of the appellant’s offending.
Namely, the appellant contended that the NSW Court of Criminal Appeal erred in refusing to take into account the psychiatric opinion contained in the material first tabled in the NSW Court of Appeal proceedings."
The High Court held that the psychiatric opinion was based on a history which seemed to depart from the agreed facts on which the appellant was sentenced, and that his opinion that the appellant was in a psychotic state, or its equivalent, appeared to traverse the appellant's pleas. The High Court has held that nothing in the additional material supported the appellant's submission that the NSW Court of Criminal Appeal’s refusal to permit him to run a different case before it had occasioned a miscarriage of justice – see the High Court’s decision at [59].
“The case that the appellant submits the interests of justice required the Court of Criminal Appeal to take into account in the exercise of its sentencing discretion is inconsistent with the case that was made before Judge Toner. Had the appellant sought to challenge Judge Toner's finding of the cause of his offending on the hearing of his appeal in the Court of Criminal Appeal, it is accepted that Dr Nielssen's evidence may properly have been rejected because it was not fresh evidence. As earlier explained, there is no principled reason for holding that a finding that was not open to challenge on the appeal is susceptible of challenge on new evidence in the event the appellate court comes to consider re-sentencing. 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.”
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Sources:
Betts v The Queen [2016] HCA 25 (15 June 2016) and High Court Judgment Summary information.
Betts v R [2015] NSWCCA 39 (24 March 2015)
