R v Wise

(2000) 2 VR 287; [2000] VSCA 169

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentence
3. › Breach of community-based order
4. › Re-sentencing under s 47 of Sentencing Act 1991 (Vic)
5. › Procedural fairness
6. › Re-sentencing judge in possession of original sentencing remarks not available to counsel
7. › Whether impression given that reasons confidential to judges
8. › Whether denial of procedural fairness
1. Criminal Law
2. › Sentence
3. › Breach of community-based order
4. › Re-sentencing
5. › Incorporation by reference of earlier reasons not available to parties
6. › Open justice
7. › Whether sentencing remarks may incorporate by reference passages from judgment not available to parties
1. Criminal Law
2. › Appeal
3. › Sentence
4. › Re-sentencing by Court of Appeal
5. › Whether Court of Appeal should re-sentence or remit to trial court

Quick Take

A re-sentencing judge who possesses the original sentencing remarks must make them available to counsel or ensure counsel's agreement before relying on them. Incorporation by reference of passages from a judgment not available to the parties breaches the principle of open justice and cannot be condoned unless the earlier reasons are published at the same time. The test for procedural fairness in this context is objective — it is the appearance of fairness that matters, not the judge's subjective intention.