R H McL v The Queen [2000] HCA 46

R H McL v The Queen [2000] HCA 46

Where, in the context of proper joinder and an appeal against all convictions, the Court of Appeal quashes some convictions but upholds others, s 569(1) of the Crimes Act 1958 (Vic) empowers the Court to re-sentence on the remaining counts if the original sentences are manifestly inadequate, even in the absence of a Crown appeal against sentence, provided procedural fairness is afforded. There was no error in the exercise of this power by the Court of Appeal. The absence of a statutory or common law 'ceiling' does not preclude a substituted sentence from matching the original, if reasoned as appropriate.

Parties
Appellant: R H McL; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
31 August 2000
Procedural Posture
Criminal Appeal / High Court Appeal From Supreme Court of Victoria
Outcome
Appeal dismissed (majority).
Legal Topics
Sentencing, Appeals, Re Sentencing, Procedural Fairness, Totality Principle, Ceiling Principle
Criminal Law Sentencing Appeals Re Sentencing Procedural Fairness Totality Principle Ceiling Principle

Case Brief

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Parties

R H McL

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / High Court Appeal From Supreme Court of Victoria

Legal Issues

  1. 1 Whether Court of Appeal had power under s 569(1) of the Crimes Act 1958 (Vic) to increase sentences on remaining counts after some convictions were quashed when neither party appealed sentence;
  2. 2 Whether the Court of Appeal failed to accord procedural fairness in resentencing;
  3. 3 Whether, absent explicit reasons, the substituted sentence could properly be the same as the original sentence despite reduction in convictions.

Ratio Decidendi

Where, in the context of proper joinder and an appeal against all convictions, the Court of Appeal quashes some convictions but upholds others, s 569(1) of the Crimes Act 1958 (Vic) empowers the Court to re-sentence on the remaining counts if the original sentences are manifestly inadequate, even in the absence of a Crown appeal against sentence, provided procedural fairness is afforded. There was no error in the exercise of this power by the Court of Appeal. The absence of a statutory or common law 'ceiling' does not preclude a substituted sentence from matching the original, if reasoned as appropriate.

Court Disposition

Appeal dismissed (majority).

Orders

  • Appeal dismissed.