Tarrant v R [2018] NSWCCA 21

Tarrant v R [2018] NSWCCA 21

The sentencing process miscarried because, by the stage of the sentencing hearing, a fair-minded lay observer might reasonably apprehend that the judge might not decide the sentence impartially. The judge's questioning and comments, including his challenge to the basis of unchallenged psychiatric opinions that supported the jury's manslaughter verdict and his expression of adverse views not advanced by the prosecution, could lead the observer to think that he had stepped beyond the role of impartial arbiter and might make findings based on his own assessment rather than the trial evidence and the jury's verdict. The sentence therefore had to be set aside and the matter remitted for...

Jurisdiction
Australia
Judgment Date
23 February 2018
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal From Sentence Imposed in the Common Law Division on 19 August 2016
Outcome
Leave to appeal granted; appeal allowed; sentence and orders set aside; matter remitted to the Common Law Division for sentencing for manslaughter.
Legal Topics
['appeal Against Sentence' 'apprehended Bias' 'recusal' 'manslaughter' 'substantial Impairment by Abnormality of Mind' 'diminished Responsibility' 'domestic Violence Evidence' 'crimes Act 1900 (nsw) S 23 A']
['criminal Law' 'criminal Procedure' 'sentencing'] ['appeal Against Sentence' 'apprehended Bias' 'recusal' 'manslaughter' 'substantial Impairment by Abnormality of Mind' 'diminished Responsibility' 'domestic Violence Evidence' 'crimes Act 1900 (nsw) S 23 A']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal From Sentence Imposed in the Common Law Division on 19 August 2016

Legal Issues

  1. 1 ["Whether comments and questions by the sentencing judge during the applicant's trial, a co-offender's trial, and sentencing hearings gave rise to a reasonable apprehension of bias." 'Whether the sentencing judgment should be set aside for apprehended bias.' "Whether the sentencing judge's assessment of culpability was consistent with the jury's finding of substantial impairment by abnormality of mind under Crimes Act 1900 (NSW) s 23A." 'Whether the sentencing judge diminished the force and effect of unchallenged psychiatric evidence by reassessing or rejecting underlying facts.']

Ratio Decidendi

The sentencing process miscarried because, by the stage of the sentencing hearing, a fair-minded lay observer might reasonably apprehend that the judge might not decide the sentence impartially. The judge's questioning and comments, including his challenge to the basis of unchallenged psychiatric opinions that supported the jury's manslaughter verdict and his expression of adverse views not advanced by the prosecution, could lead the observer to think that he had stepped beyond the role of impartial arbiter and might make findings based on his own assessment rather than the trial evidence and the jury's verdict. The sentence therefore had to be set aside and the matter remitted for...

Court Disposition

Leave to appeal granted; appeal allowed; sentence and orders set aside; matter remitted to the Common Law Division for sentencing for manslaughter.

Orders

  • ['Grant the applicant leave to appeal from the sentence imposed in the Common Law Division on 19 August 2016.' 'Allow the appeal and set aside the sentence and orders made by Fagan J in the Common Law Division.' 'Remit the matter to the Common Law Division for the sentencing of the applicant with respect to the...