Fact finding at sentence

[1-400] The judicial task of finding facts

In R v MacDonell (unrep, 8/12/95, NSWCCA) at 1, Hunt CJ at CL stated:

The sentencing procedures in the criminal justice system depend upon sentencers making findings as to what the relevant facts are, accepting the principles of law laid down by the Legislature and by the courts, and exercising a discretion as to what sentence should be imposed by applying those principles to the facts found.

It is for the sentencer, alone, to decide the sentence to be imposed and for that purpose, the sentencer must find the relevant facts: GAS v The Queen (2004) 217 CLR 198 at [30]. The majority of the High Court acknowledged the significance of fact finding at sentence in The Queen v Olbrich (1999) 199 CLR 270 at [1]:

Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge’s conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important.

Findings of fact about matters such as motive or the degree of an offender’s involvement have a significant effect on the assessment of an offender’s moral culpability. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender’s culpability is more difficult than that of determining his or her guilt: Cheung v The Queen (2001) 209 CLR 1 per Gleeson CJ, Gummow and Hayne JJ at [8].

[1-405] Onus of proof

In The Queen v Olbrich (1999) 199 CLR 270 at [24], the High Court collected the authorities in Australia for the previous 30 years in relation to the onus and standard of proof at sentence. The majority judges said at [25]:

References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.).

[1-410] Standard of proof

A court may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 at [64], [66]. The offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour: Filippou v The Queen at [64], [66]; The Queen v Olbrich at [27]–[28].

[1-420] Disputed factual issues

The court must do its best to find facts concerning the offending and the offender’s moral culpability. In some cases it is not possible to ascertain everything that is relevant especially where an offender chooses not to offer any evidence on the plea: Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 at [70]. Framing the fact finding process by using terms such as the onus and standard of proof may give a misleading impression that all disputed issues of fact related to sentencing must be resolved for or against the offender: Weininger v The Queen (2003) 212 CLR 629 at [19]. Some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed: Weininger v The Queen at [19]. It is sometimes not possible for the court to ascertain everything that is relevant. Where that occurs the court must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard: Filippou v The Queen at [70]. The court is not bound to adopt the view of the facts most favourable to the offender: Filippou v The Queen at [5], [70], [72]; Weininger v The Queen at [20]. In this respect, the fact finding process in Australia differs from the common law jurisdictions of England, Canada and New Zealand: Filippou v The Queen at [71]. Therefore, in Filippou v The Queen, there was no error for the court to sentence the offender on the basis that the origin of the gun was unknown after the court had rejected the offender’s submissions to the contrary.

Disputed facts should be resolved by the accusatorial process, upon the evidence before the court applying the respective onus and standards of proof: O’Neill-Shaw v R [2010] NSWCCA 42 at [26]. Counsel for the parties did not discharge their duty to the court and imposed “a significant procedural irregularity” on the sentencer where there was no agreed statement of facts and the sentencer was expected to resolve disputed issues in the absence of cross-examination: O’Neill-Shaw v R at [48].

However, if evidence is unchallenged by the prosecution, and it is not inherently implausible, the sentencer is not entitled to reject it or fail to act on it without giving proper notice to the offender of that intended course: O’Neill-Shaw v R at [26], citing R v Palu (2002) 134 A Crim R 174 at [21]. O’Neill-Shaw v R involved a disputed history of violence by the victim towards the offender which was relied upon to lessen the applicant’s culpability: at [54]. The judge, in the absence of evidence to the contrary, should have accepted and taken into account the unchallenged material: at [28]. “Where there has been no cross-examination, ‘judges should in general abstain from making adverse findings about parties and witnesses’: MWJ v The Queen (2005) 80 ALJR 329”: O’Neill-Shaw v R per Basten JA at [27].

[1-430] Factual issues need not be either aggravating or mitigating factors

Each factual matter found at sentence need not fit into the extremes of aggravating and mitigating factors. In Weininger v The Queen (2003) 212 CLR 629 at [22], the High Court said:

Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of, and concerning, human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.

[1-440] Fact finding following a guilty verdict

In Savvas v The Queen (1995) 183 CLR 1 at 8, Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the “principle that a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”. Fact finding following a jury verdict is affected by the inscrutability of a jury verdict. In Cheung v The Queen (2001) 209 CLR 1 the High Court (the joint judgment at [14]; Callinan J at [169]) cited the decision of R v Isaacs (1997) 41 NSWLR 374 with approval on the question of fact finding following a jury verdict. The joint judgment summarised the law at [14]:

In Isaacs the Court of Criminal Appeal summarised certain well-established principles concerning the law and practice of sentencing in New South Wales as follows [(1997) 41 NSWLR 374 at 377–378 per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ] (omitting references to authority):

“1.

Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …

2.

Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings …

3.

The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury …

4.

A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt …

5.

There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender …”.

The joint judgment in Cheung v The Queen stresses that a jury’s verdict decides the issues joined by the plea to the indictment. It does not decide, either expressly or by implication, all facts of possible relevance to sentencing. It may be possible to infer that certain parts of the evidence must have been accepted by the jury. However, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution.

[1-445] Exceptions to approach in Cheung and Isaacs

In Chiro v The Queen [2017] HCA 37, the court held that the approaches taken in Cheung v The Queen (2001) 209 CLR 1 and R v Isaacs (1997) 41 NSWLR 374 were not intended to govern sentencing for a persistent sexual offence charge. See further Persistent sexual abuse of child: s 66EA at [17-500].

[1-450] Fact finding following a guilty plea

A plea of guilty admits those matters which are the essence of the charge. It does not admit the non-essential ingredients an offence: R v O’Neill [1979] 2 NSWLR 582 at 588; Duffy v R [2009] NSWCCA 304 at [21]. In GAS v The Queen (2004) 217 CLR 198 at [30], five members of the High Court said of fact finding following a plea of guilty:

In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case.

For example, in Duffy v R at [20], an agreed statement facts was silent on the question of whether an assault was committed at the instigation of an offender by pre-arrangement with his co-offenders. The applicant testified he came upon the victim by chance. It was not open on the evidence for the judge to find that the applicant “deliberately set out with some friends in case he needed assistance to deal with the victim”: at [21].

[1-455] Plea agreements

Often where an offender pleads guilty, sentencing procedures are marked by a degree of informality. Usually, an agreed statement of facts, sometimes negotiated between the accused and the prosecution, will be placed before the sentencing judge: The Queen v Olbrich (1999) 199 CLR 270 per Kirby J at [52]. In GAS v The Queen (2004) 217 CLR 198 at [27]–[32], the High Court said that plea agreements are affected by five fundamental principles:

1. 

It is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person.

2. 

It is the accused person, alone, who must decide whether to plead guilty to the charge preferred.

3. 

It is for the sentencing judge, alone, to decide the sentence to be imposed.

4. 

There may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found, the relevant law and sentencing principles.

5. 

An erroneous submission of law may lead a judge into error and, if that occurs, the usual means of correcting the error is through the appeal process. It is the responsibility of the appeal court to apply the law.

In GAS v The Queen, the purported part of the plea agreement “that each offender should receive a lesser sentence than a principal” breached the fourth principle. The court said at [39]:

It was an inappropriate subject for any kind of agreement between counsel. It related, in substance, to the significance for a sentencing judge’s discretion of a circumstance that varies in importance from case to case.

Similarly, in Ahmad v R [2006] NSWCCA 177 at [23]–[26], although the Crown Prosecutor had agreed with the defence as to an appropriate sentence, this did not bind the judge. The agreement carried no greater weight than any other Crown submissions made in the sentencing process.

Plea agreements should ordinarily be recorded in writing

The High Court in GAS v The Queen added the following general observations about plea agreements at [42]:

It is as well to add some general observations about the way in which the dealings between counsel for the prosecution and counsel for an accused person, on subjects which may later be said to have been relevant to the decision of the accused to plead guilty, should be recorded. In most cases it will be desirable to reduce to writing any agreement that is reached in such discussions. Sometimes, if there is a transcript of argument, it will be sufficient if an agreed statement is made in court and recorded in the transcript as an agreed statement of the position reached. In most cases, however, it will be better to record the agreement in writing and ensure that both prosecution and defence have a copy of that writing before it is acted upon. There may be cases where neither of these courses will be desirable, or, perhaps, possible, but it is to be expected that they would be rare.

[1-460] Agreed statements of facts

In R v Crowley [2004] NSWCCA 256 at [46], Smart AJ said:

Agreed facts should always be carefully checked by all parties and their legal representatives, and especially by counsel for an offender. This should not be perfunctory.

In Loury v R [2010] NSWCCA 158, there were no written instructions to plead guilty from the applicant. There was no suggestion that the Agreed Statement of Facts had ever been read over, signed or explained to him: at [107]–[108]. The court found a serious miscarriage of justice in Loury v R. The agreed statement of facts were “entirely inconsistent with the instructions the appellant had given to [his solicitor]”: at [108]. Nor was the appellant aware of his solicitor’s plea negotiations with the Crown: at [81].

However, in CL v R [2014] NSWCCA 196, the applicant unsuccessfully sought to challenge the agreed statement of facts to which his legal representatives did not object. The court held that the applicant was bound by the conduct of his counsel at the sentence hearing: CL v R at [44]. On the other hand, the statement of facts tendered by the applicant had no such standing: CL v R at [45].

Must be comprehensible

It is the statutory obligation of the Crown to ensure that the agreed statement of facts presents, in a comprehensible fashion, the facts and circumstances of the offences upon which it seeks the court to sentence the offender: Della-Vedova v R [2009] NSWCCA 107 at [14]. The statement of facts must be framed so that the court can discern what is agreed to be fact and what is merely assertion: Della-Vedova v R at [11].

It is unsatisfactory to leave the preparation of the statement of agreed facts to those whose function and expertise is in investigation (in this case, the AFP, NSW Police and NSW Crime Commission), and not those who are trained, skilled and experienced in the preparation of evidence: Della-Vedova v R at [14].

Tender of other documents in addition to

The wisdom of tendering the entire Crown brief in addition to the agreed statement of facts where a plea agreement has been reached has been doubted by the court in R v H [2005] NSWCCA 282 at [58] and R v Bakewell (unrep, 27/6/96, NSWCCA). This is because it runs a risk that the sentencer will take into account facts that will aggravate the offence contrary to the principle in The Queen v De Simoni (1981) 147 CLR 383: R v FV [2006] NSWCCA 237 at [41]. In R v FV the complainant’s statement was used as an elaboration of the agreed statement of facts. The court held it provided an insight into her ordeal and supplemented, rather than contradicted, the agreed statement. In R v Crowley [2004] NSWCCA 256 at [46], Smart AJ said:

Where agreed facts are presented and the other materials tendered by either side depart from the agreed facts, counsel should draw this to the judge’s attention and advise which is to prevail and on what facts the offender should be sentenced. If this does not happen and the judge subsequently discovers that there is a difference he should raise it with the parties and not proceed to sentence until the matter is resolved by agreement or otherwise.

Assigning a higher degree of culpability

If a sentencer decides to assign a higher degree of culpability to the offender than disclosed in the agreed facts, he or she should give the offender an opportunity to address the judge’s view: R v Uzabeaga (2000) 119 A Crim R 452 at [38], referred to in Yaghi v R [2010] NSWCCA 2 at [50].

It is open for a judge to sentence in accordance with the agreed statement of facts despite contradictory sworn evidence from the offender, but where a judge decides to sentence an offender other than in accordance with those facts, this should be referred to during the remarks on sentence: Zammit v R [2010] NSWCCA 29 at [26]. The judge should not act on material inconsistent with, or in amplification of, some aspect of the agreed facts, without first bringing this to the parties’ attention: Zammit v R at [26]; R v Falls [2004] NSWCCA 335 per Howie J at [37]; R v Crowley at [46].

See also Procedural fairness at [1-040] and [1-050].

Form 1 documents and agreed facts

A court must not take into account offences specified in a list of additional charges on a Form 1 (see s 32) or any statement of agreed facts that was the subject of charge negotiations, unless the prosecutor has filed a certificate with the court. The certificate must verify that the consultation between the victim and the police officer in charge of investigating the offence has taken place or, if consultation has not taken place, the reasons why it has not occurred. The certificate must also verify that any statement of agreed facts, tendered to the court, which arises from the negotiations constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts, or has otherwise been settled in accordance with the applicable prosecution guidelines: s 35A Crimes (Sentencing Procedure) Act 1999.

See Charge negotiations: prosecutor to consult with victim and police at [13-275].

Parity and agreed facts

For a discussion on parity and agreed facts, see Baquiran v R [2014] NSWCCA 221 in Parity at [10-800].

[1-470] Factual disputes following a committal for sentence

Chapter 3 Pt 2 Div 5 Criminal Procedure Act 1986, and particularly s 99, enables an accused person to plead guilty to an indictable offence in committal proceedings before a magistrate. Before the section and its precursor were enacted, a guilty plea could only be entered after arraignment before the Central Criminal Court or the District Court: R v Paauwe [1971] 2 NSWLR 235. In R v Radic (2001) 122 A Crim R 70, a factual dispute arose in a sentencing matter that had been committed under the predecessor to s 99 Criminal Procedure Act, the former s 51A Justices Act 1902. The accused pleaded guilty in the Local Court to one count of break, enter and commit serious indictable offence (steal). The magistrate accepted the plea and committed the applicant for sentence to the District Court. In the District Court the applicant disputed that he had stolen jewellery. He said he had stolen a drill. This was not the Crown case. The judge resolved the factual dispute in the applicant’s favour and sentenced on the basis that a drill had been stolen. The court held that the course adopted by the parties at sentence was not permitted under former s 51A Justices Act. It took the conduct of the prosecution out of the hands of the Crown. It was for the Crown, and not the applicant, to nominate the goods that were allegedly stolen from the premises.

Former s 51A Justices Act exhaustively set out the courses that were available in the circumstances (these are now contained in Div 5). Once it became clear to the sentencing judge that the applicant denied he had stolen jewellery, on the one hand, and on the other, that on the Crown case there was no drill on the premises, former s 51A should have been considered. As Carruthers AJ explained at [38]:

The Crown prosecutor may have requested the Judge to remit the matter to the committing Justice. The Judge, of his own motion, may have ordered that the matter be remitted: [see s 51A(d)(i)]. Alternatively, under [s 51A(d)(ii) (now s 104)] the Judge may have refused to accept the plea, directed that a plea of not guilty be entered, and that the matter proceed to trial.

According to Carruthers AJ at [58], the difficulties which arose in this case:

demonstrate[d] the need for sentencing Judges to ensure that when accused persons are committed for sentence pursuant to s 51A of the Justices Act, the terms of that section are carefully and precisely complied with.

[1-480] Application of the Evidence Act 1995 to sentencing

Often the prosecution brief (or parts of it) tendered by the Crown at sentence may not conform to the ordinary rules of evidence. The rules of evidence can be invoked at sentence in appropriate cases.

Section 4(2) Evidence Act provides that the Act applies to sentencing proceedings only if: (a) the court directs that the law of evidence applies in the proceeding, and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters — the direction has effect accordingly.

Section 4(3) provides:

The court must make a direction if:

(a) 

a party to the proceeding applies for such a direction in relation to the proof of a fact, and

(b) 

in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.

Section 4(4) provides:

The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

The court in Youkhana v R [2013] NSWCCA 85 made a direction that the Evidence Act applied and then admitted (in the Crown case) a statement of an unavailable witness under s 65(2)(b) and (d). Note that the test for admission of such a statement is different where a defendant seeks to have such a statement admitted under s 65(8): Baker v The Queen (2012) 245 CLR 632 at [55]. In Lam v R [2015] NSWCCA 143, the court applied the provisions of the Evidence Act (on appeal) to determine whether it was open for the judge to reject a psychologist’s opinion favourable to the offender. The judge did not accept the history upon which the opinion evidence was based. This was a legitimate basis for rejecting the conclusions in an expert’s report: Lam v R at [58]; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

A court has no power to make a costs order under s 177(7) Evidence Act unless or until it gives a direction (in accordance with s 4(2)(a)) that the Evidence Act applies to sentencing proceedings: Badans v R [2012] NSWCCA 97 at [81].

Section 191 Evidence Act deals with agreements as to facts. The section provides that, where “formalities are met”, no evidence can be adduced to contradict or qualify an agreed fact unless the court gives leave under s 191(2)(b). Formalities in the context of sentencing will include that the parties have signed the agreed statement of facts as encouraged in GAS v The Queen (2004) 217 CLR 198 at [42]. The section was discussed in R v FV [2006] NSWCCA 237 at [35], [39], [44].

In Duffy v R [2009] NSWCCA 304 at [20], the court suggested that the prosecutor could have utilised s 44(3) Evidence Act where there was a factual dispute about the offender’s involvement in a joint criminal enterprise. The prosecutor could have invited the offender to read particular answers given by his co-offenders to police (recorded in a statement to police or a record of interview) and then asked the offender to either confirm that the information was true, or identify where it was false, in accordance with s 44(3). In the event the prosecutor was faced with denials by the offender, it would then have been open to attempt to prove the matters by other admissible evidence.

[1-490] Untested self-serving statements

The fact that the rules of evidence are rarely invoked and that hearsay evidence is routinely admitted does not mean that the court is not required to critically assess the weight of the evidence before it. The Court of Criminal Appeal has said repeatedly that while hearsay evidence of statements made by offenders to doctors, psychologists, psychiatrists and parole officers in reports is admissible on sentence, very considerable caution should be exercised in relying on such statements when the prisoner does not give any evidence and the matters are in dispute: R v Harrison (2002) 121 A Crim R 380 at [32]; R v Hooper [2004] NSWCCA 10 at [49]; Munro v R [2006] NSWCCA 350 at [17]–[19]; Woodgate v R (2009) 195 A Crim R 219 at [19]; Butters v R [2010] NSWCCA 1 at [18].

The Court of Criminal Appeal has criticised the practice of placing such material before sentencing judges in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of a record: R v Qutami (2001) 127 A Crim R 369, per Smart AJ at [58]–[59], and per Spigelman CJ at [79]. Great caution should also be exercised when accepting exculpatory or mitigatory histories from offenders recorded in documents tendered on sentence but not supported by sworn evidence: Lewin v R [2017] NSWCCA 65 at [26]; PH v R [2017] NSWCCA 79 at [53], [56].

In Imbornone v R [2017] NSWCCA 144, Wilson J set out at [57] a number of principles to be applied when a sentencing judge is faced with an untested statement made to a third party:

1. 

Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [(2001) 127 A Crim R 369] at [58]–[59].

2. 

Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [(2002) 134 A Crim R 174 at [40]–[41]]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]–[25].

3. 

It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

4. 

If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]–[19].

5. 

Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, “to treat this evidence with anything but scepticism represents a triumph of hope over experience”: R v Harrison [(2002) 121 A Crim R 380] at [44].

[1-500] De Simoni principle

In The Queen v De Simoni (1981) 147 CLR 383 at 389, Gibbs CJ said:

the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

The court reiterated in Nguyen v The Queen (2016) 90 ALJR 595 at [29] that “the De Simoni principle is an aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted”.

If another offence carries a higher maximum penalty than does the offence for which the offender is being sentenced, that other offence will be a more serious offence for the purposes of the principles stated in The Queen v De Simoni. See for example R v Booth (unrep, 12/11/93, NSWCCA); R v Channells (unrep, 30/9/97, NSWCCA); R v JB [1999] NSWCCA 93; R v Hector [2003] NSWCCA 196.

The effect of s 21A(4) Crimes (Sentencing Procedure) Act 1999 is to require the court to disregard a matter of aggravation cited in s 21A because to take it into account would be to punish the offender for an offence which was more serious than that for which the offender was to be sentenced: R v Wickham [2004] NSWCCA 193 at [26]. This consideration is most likely to arise when the court has regard to factors which are often found as aggravating features of offences in the Crimes Act 1900, such as that the offence was committed in company, that the offender used a weapon, or that the offender was in a position of trust.

See also Section 21A Factors “in addition to” any Act or rule of law at [11-050].

The principle operates for the benefit of an offender and does not apply to preclude a court taking into account the absence of a circumstance which, if present, would render the offender guilty of a more serious offence: Nguyen v The Queen at [29], [60] overturning R v Nguyen (2013) 234 A Crim R 324 at [52]. However, such an enquiry, although not a breach of De Simoni, is irrelevant: Nguyen v The Queen at [29].

Taking into account aggravating facts for offences with the same maximum

In R v Overall (1993) 71 A Crim R 170 at 175, Mahoney JA, Allen J agreeing, said that “the precise ambit of the principle is yet to be determined”. The uncertainty about the ambit of the principle was explained by Hunt CJ at CL in R v Crump (unrep, 30/5/94, NSWCCA):

It has sometimes been argued in this court that [the De Simoni] principle applies also to exclude as an aggravating feature any fact established in the evidence if that fact would by itself have rendered the offender guilty of any other offence, whether or not that other offence would have rendered the offender liable to a more serious penalty than that to which he is liable for the offence for which he is being sentenced. That is not so. At first blush, the early eighteenth century principle to which Gibbs CJ referred in of his judgment (at 389) would support such an argument, but the modern authorities which the Chief Justice went on to discuss (at 389–391) make it clear that such a fact should be excluded only where it would have made the offender liable to a more serious penalty. [Emphasis in original.]

The proposition that the principle cannot be transgressed unless the offender is exposed to a higher maximum penalty has been called into question in some cases. As the discussion in the chapters referred to below shows, the mere fact that “the other offence” carries the same maximum penalty does not necessarily preclude the operation of the De Simoni principle. For example, in Cassidy v R (2012) A Crim R 420 at [6], [26] offences under ss 27 to 30 Crimes Act which require an intent to kill and which have standard non-parole periods, were regarded as “more serious” for the purposes of the De Simoni principle than an offence under s 198 Crimes Act (destroying or damaging property with intention of endangering life) notwithstanding that the latter offence has the same maximum penalty. Ultimately, what De Simoni requires is an assessment of whether “the other offence” is more serious. The course that the charge negotiations have taken in the particular case may also have a bearing on whether it is unfair to take into account a particular aggravating feature.

For a discussion of the application of the De Simoni principle to particular offences see Break and enter offences at [17-060]; Sexual offences against children at [17-450]; Dangerous driving at [18-370]; Public justice offences at [20-150]; Robbery at [20-210], [20-220], [20-250], [20-260], [20-280]; Sexual assault at [20-650]; Assault, wounding and related offences at [50-030], [50-050]–[50-090], [50-120]; Damage by fire and related offences at [63-015].