The principle
In De Simoni[i], Gibbs CJ held, at [389], that: “[A] judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but (our emphasis) cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”
History
De Simoni pleaded guilty to one count of robbery for an incident occurring on 25 May 1979, at Mundaring WA, when he stole broke into a house and stole $180 from the occupant, Florence Kathleen Scott.
Counsel for the Crown stated the following material facts to the Court:
- The victim of the robbery was a lady aged 78.
- At the time of the robbery, De Simoni struck the victim a heavy blow on the back of the head.
- The blow inflicted a wound to the scalp at the rear of the skull, which was about 10 centimetres in length and required eight stitches.
Counsel for De Simoni did not dispute the facts.
The trial judge sentenced De Simoni to seven years imprisonment, with a non-parole period of four years, and said:
“In my view this is a shocking crime. You did subsequently show some compassion. You assisted her by washing her wound which subsequently required eight stiches and in fact my recollection is that you left some money for her but I feel this was more because of the realisation at that stage of what you had done – struck from behind on the head with a piece of wood a 78-year-old woman. In my view this crime deserves punishment and substantial punishment.”
De Simoni appealed his sentence to the Western Australian Court of Criminal Appeal. The Court held that it was not permissible for the trial judge, in imposing the sentence, to have regard to any such circumstances of aggravation, namely De Simoni wounding his victim and using personal violence against the victim, that was not charged in the indictment. De Simoni’s sentence was reduced to three years imprisonment with a non-parole period of eighteen months.
The Crown appealed the decision to the High Court of Australia.
The High Court considerations
Gibbs CJ expressed his view that it may seem unlikely that the framers of the Crime Code (W.A.) intended for an offender to be sentenced on fictitious basis, where no circumstances of aggravation existed, when it is found by the trial judge that such circumstances did exist, particularly when such a finding is based upon unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty[ii]. His Honour also considered the general principle that the sentence imposed on an offender should take into account all of the circumstances of the offence, subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted[iii], before enunciating the De Simoni principle.
The appeal was upheld and the case was remitted back to the Court of Criminal Appeal to consider on grounds the application had not addressed in the first instance.
The principle in its application
The De Simoni principle continues to be applied in sentencing in NSW for the purpose of prohibiting a sentencing court from taking into account facts and aggravating circumstance of the offence that would warrant a conviction for a more serious offence, and for which the offender has not been charged.
If you have been charged with an offence, the statement of facts accompanying the court attendance notice should be examined carefully by a lawyer.
Here, at Foulsham and Geddes, we take great care when inspecting fact sheets and conferring with the prosecutor to identify any facts, or mention of any aggravating circumstances, that must be amended or removed, prior to the matter proceeding to sentencing, to maximise your chances of a fair sentencing.
Endnote
[i] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
[ii] Ibid.
[iii] Ibid.
