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

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]:

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].

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]:

The guilty plea is the offender’s formal admission of the legal ingredients of the offence and the High Court in Strbak v The Queen (2020) 267 CLR 494 said, at [32]–[33], that because of this:

A guilty plea does not relieve the prosecution of its obligation to prove the facts of the primary case on which it seeks to have the offender sentenced without the offender’s assistance.

A court may not take facts into account in a way that is adverse to the interests of the offender 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]; Strbak v The Queen (2020) 267 CLR 494 at [32]. 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].

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] 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] NSWCCA 381 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].

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:

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]:

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. Relying on evidence on sentence that is fundamentally inconsistent with the evidence given at the trial (or making findings based on it which are inconsistent with those which, in all probability, formed the basis of the jury’s verdict), in a manner favourable to the prosecution, is not permitted: Tarrant v R [2018] NSWCCA 21 at [92].

In Chiro v The Queen (2017) 260 CLR 425, 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 Maintain unlawful sexual relationahip with child: s 66EA at [17-500].

A plea of guilty admits those matters which are the essence of the charge: Strbak v The Queen (2020) 267 CLR 494 at [32]. 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:

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].

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:

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]:

See also Barbaro v The Queen (2014) 253 CLR 58 at [44]–[48].

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

In Loury v R [2010] NSWCCA 158, there were no written instructions to plead guilty from the applicant. There was no suggestion 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].

Chapter 3 Pt 2 Div 8 Criminal Procedure Act 1986, and particularly s 97, enables an accused to plead guilty to an indictable offence in committal proceedings before a magistrate and, if the plea is accepted, the accused is committed to the District or Supreme Court for sentence. Where a dispute concerning essential facts arises during sentence proceedings (see generally R v Radic [2001] NSWCCA 174, although this considered s 51A(1)(d) of the Justices Act 1902 (rep)), the courses available to a sentencing judge are set out in s 101 which provides that the judge may order the committal proceedings continue before a magistrate if—

Section 102(1) states that the court “may, on the basis of a court attendance notice, indictment or charge certificate, proceed to sentence or otherwise deal with an accused person brought before the Court under section 97 as if [they] had on arraignment … pleaded guilty to the offence on an indictment filed or presented”. Of the equivalent provision, s 51A(1)(d)(ii) Justices Act 1902 (rep), Carruthers AJ said, in R v Radic [2001] NSWCCA 174 at [38], that the judge can direct that a plea of not guilty be entered and the matter proceed to trial.

In R v Radic, where the accused had been committed for sentence for break, enter and commit serious indictable offence (steal), the court held that the judge erred by resolving a factual dispute at sentence (whether the goods allegedly stolen were jewellery or a drill) in favour of the accused. It was for the Crown, not the accused, to nominate the goods and the charge should have identified the specific property allegedly stolen: at [32], [38]. Carruthers AJ (Hidden J and Badgery-Parker AJ agreeing) said at [30] that the plea of guilty “admits those matters which are of the essence of the charge. [It]…does not, however, admit non-essential ingredients of the offence”. See also Dean v R [2019] NSWCCA 27 at [19]–[24] and Hamilton v DPP [2020] NSWSC 1745 at [84]–[114] where, in each, a similar issue was considered although in different contexts.

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:

Section 4(4) provides:

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.

The fact that the rules of evidence are rarely invoked and that hearsay evidence is routinely admitted does not mean 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 [2001] NSWCCA 79 at [32]; R v Hooper [2004] NSWCCA 10 at [49]; Munro v R [2006] NSWCCA 350 at [17]–[19]; Woodgate v R [2009] NSWCCA 137 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] NSWCCA 353, 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:

However, notwithstanding the caution that should be taken to untested self-serving statements by an offender to an expert witness, such as a psychiatrist, when there is evidence from the expert about the offender’s mental state, it may be wrong to take an unduly restrictive approach to such evidence, particularly when it may be supported by other evidence in the case: Luque v R [2017] NSWCCA 226 at [71]–[84]; see also the observations by McCallum JA in Lloyd v R [2022] NSWCCA 18 at [46]–[47].

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

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(2) and the De Simoni principle at [11-050] in Section 21A Factors “in addition to” any Act or rule of law .

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] NSWCCA 195 at [52]. However, such an enquiry, although not a breach of De Simoni, is irrelevant: Nguyen v The Queen at [29].