R H McL v The Queen [2000] HCA 46

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

R H McL APPELLANT

AND

THE QUEEN RESPONDENT

R H McL v The Queen [2000] HCA 46

31 August 2000

M95/1999

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation:

P F Tehan QC with C B Boyce for the appellant (instructed by Leanne Warren & Associates)

W H Morgan-Payler QC with C J Ryan for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

R H McL v The Queen

Sentencing – Power of Court of Appeal to re-sentence on remaining convictions after quashing some convictions – Counts properly joined – No appeal against sentence by either Crown or appellant – Principles of proportionality and totality – Whether Court of Appeal had power to increase the sentences of the appellant on the remaining convictions – Whether Court of Appeal gave adequate reasons for increase in sentence – Whether substituted sentence ordinarily subject to ceiling on total punishment so appellant not exposed to risk of increased punishment following a successful appeal.

Words and phrases – "totality principle", "ceiling principle".

Crimes Act 1958 (Vic), s 569(1).

Sentencing Act 1991 (Vic), s 16(3A).

1. GLEESON CJ, GAUDRON AND CALLINAN JJ. The principal issue in this appeal concerns the meaning and application of s 569(1) of the Crimes Act 1958 (Vic), a provision which has counterparts in other Australian jurisdictions, and which gives power to the Court of Appeal in a criminal appeal, in certain circumstances, to re-sentence an appellant who has been convicted of multiple offences and who appeals successfully against some of his convictions. There is a subsidiary issue as to whether, in the present case, there was a failure by the Court of Appeal to comply with the requirements of procedural fairness.