While this statement of fact shouldn’t qualify as newsworthy, some appellate court decisions make it appear as though sentencing is a task better suited to a computer than a person. So it’s worth taking note of a case which finds that not every expression of emotion from the bench results in prejudice to the accused.
In Pitt v Police  SASC 244, the accused pled guilty to a charge of dangerous driving causing injury. The driver had flipped her car whilst travelling too quickly on a dirt road. The impact caused her passenger to miscarry her pregnancy.
A photograph of the stillborn baby was tendered to the sentencing court.
9. The Magistrate, having looked at the photograph, according to the material contained in the affidavits I have read, then became somewhat emotional and left the bench. When he returned, he commented that his sister had recently given birth to a stillborn child, but that the photograph that he just viewed would have no bearing on the sentence he imposed.
The accused was sentenced, and subsequently appealled. It was submitted that the magistrate ought to have recused themselves on the ground of apprehended bias. The Supreme Court rejected the argument.
Strictly speaking, the tender of the photograph of the stillborn child was unnecessary; however, it is perfectly understandable why the Magistrate, in a small country court, with the families of both sides present, determined to accept it in the context of those proceedings.
After explaining in open court that the photograph would have no bearing on any penalty he imposed, the Magistrate did not again refer to that photograph in the course of his sentencing remarks. The Magistrate was entitled, indeed, it seems to me he was obliged, to allow the prosecutor to furnish the court with the victim impact statement setting out the impact of the appellant’s offending on the victim and her family.
Viewed in that way, the receipt of the photograph was doing no more than acknowledging that the victim’s loss of her unborn child had caused untold devastation and grief and was a part of the consequences of the appellant’s conduct. In my view, there is nothing else to indicate that the Magistrate gave undue weight to this aspect of the victim impact statement.
The basis upon which the appellant now argues that the Magistrate ought to have disqualified himself arises out of the events which occurred after he received the photograph. After leaving the bench for ten minutes or so, the Magistrate returned and announced to the court, unfortunately in the absence of the appellant still, that he had had a life experience of a similar nature. I agree with the submission of counsel for the respondent, by itself, that is not sufficient to give rise to any apprehension of bias.
The test of apprehended bias is well established. A judicial officer is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
In R v Goodall  VSCA 63; (2006) 169 A Crim R 440, in a different context, Neaves JA commented that just because a person has had a particular life experience does not mean that that person cannot serve on a jury in a trial which concerned that matter to which the life experience the juror had was directly relevant.
In my view, an equally robust approach ought to be applied to the case of judicial officers called upon to impose a sentence related to circumstances in which he or she may have personally had experienced. It is unreasonable to expect that at times judicial officers may not become affected in some way as a result of the presentation of facts on which they are required to pass sentence.
In my view, that is simply to recognise that judicial officers, like any other human being, are ordinary human beings who at times may have reactions of distress or revulsion at some of the material before them.
The penalty was adjusted downwards, but for other reasons.