Grounds 1 to 4: Fact Finding by His Honour.
30 It is convenient to deal with grounds 1 to 4 together. It was the applicant's submission that his Honour had fallen into error in a number of respects. First, it was plain from the statement of the prosecutor, when the pleas of guilty were entered, that the matter was to proceed upon the basis of agreed facts. It was therefore not open to his Honour, according to the applicant, to go outside the agreed statement in determining the circumstances giving rise to each count, and specifically count 2.
31 Secondly, and alternatively, if his Honour could have recourse to the additional material, he was subject to a number of limitations. He could not, it was submitted, make a finding inconsistent with the agreed facts. Further, he could not take into account facts which amounted to an aggravated form of the offence (R v De Simoni (1981) 147 CLR 383). Reference was also made to R v H [2005] NSWCCA 282, where Studdert, Bell and Latham JJ said this:
"58. In a case in which agreement has been reached on the factual basis on which an offender is to plead guilty following a 'plea bargain' (as appears to have happened in this case), the wisdom of tendering the entire Crown brief in addition to the agreed statement may be doubted. It runs the risk that the sentencer will take into account facts that would aggravate the offence contrary to the principles in R v De Simoni (1981) 147 CLR 383; see too R v Paul [2002] NSWCCA 381; 134 A Crim R 174 at 180. In this case the statements of the complainants contained descriptions of conduct for which this applicant was not criminally responsible. Some of this material found its way into the Judge's reasons and it formed the basis of findings that were adverse to the applicant."
32 Here, the complainant's statement was capable of suggesting actual penetration, whereas the applicant had pleaded guilty to an "attempt". The pain, upon which his Honour placed some emphasis, was, on the applicant's argument, associated with penetration. It was therefore not open to his Honour to find that the attempt caused physical pain (as opposed to the distress referred to in the agreed statement of facts).
33 Thirdly, and again alternatively, if his Honour were minded to make a finding inconsistent with the agreed statement of facts, he was obliged, as a matter of procedural fairness, to warn the parties of his intention and to invite submissions. Here, according to the applicant, there had been no such warning. Attention was drawn to R v Uzabeaga [2000] NSWCCA 381, which was a sentence appeal. Juan Uzabeaga had pleaded guilty to the importation of drugs. He was one of a number associated with the importation. The Crown tendered a statement by a police officer which sought to place the offender within the hierarchy of those charged with the same offence. The submissions made to the sentencing Judge were in accordance with the police officer's expression of opinion. Bell J (with whom Simpson and Dowd JJ agreed), said this:
"30. Mr Byrne did not seek to contend that a sentencing judge was bound by the statement of agreed facts. However, he submitted that it was an error if his Honour was minded to approach the matter upon a basis other than that disclosed by the agreed facts to fail to warn the parties of that intention in order to give the parties an opportunity to meet it. It was contended that the applicant had been entitled to approach the sentence hearing upon an assumption that his culpability would be viewed by the sentencing judge as of a lesser order than the culpability of Henao and Guzman."
34 Having reviewed the authorities, her Honour concluded as follows:
"38. In my view, the sentencing judge erred in failing to inform the applicant that he was minded to sentence him upon an assessment of his relative culpability which differed from that contained in the agreed facts and in failing to give the applicant the opportunity to address that matter by evidence or otherwise."
35 Fourthly, reference was made to s191 of the Evidence Act 1995, dealing with agreement as to facts. Where facts have been agreed, certain formalities are required (s191(3)). Here, it was suggested that the formalities had been observed. The agreed statement was signed by the Crown and the offender. Where the formalities are met, no evidence can be adduced to contradict or qualify an agreed fact, unless the Court gives leave (s191(2)(b)). Here, no leave had been sought or was given.
36 The Crown, responding to these arguments, pointed out that the material had been tendered. No objection was taken. It is too late to object on the appeal. The Judge was entitled to act upon the evidence before him. He was, moreover, not bound by any agreement between the parties. Reference was made to the statement of Kirby P in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, where the following was said: (at 606)
"The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as to the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: see Malvaso v The Queen (1989) 168 CLR 227 at 223; R v Altham (NSW CCA, 18 June 1992, unreported per Hunt CJ at CL). A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes. The judge may feel the need for further material, for example, by way of pre-sentence report to assist in the performance of the sentencing function. The parties cannot forbid the judge to seek such assistance. They have their respective functions to perform. But they cannot invade the judicial function any more than the judge may invade their functions."
37 Here his Honour gave, according to the Crown, fair warning of his thinking in respect of count 2, basing his comments upon the elaboration by the complainant in her statement. He raised the issue with counsel for FV in the passage set out above, in an exchange which was described as "robust debate" by counsel for the applicant. It was, the Crown suggested, the opportunity which his Honour gave the defence to comment upon aspects of the complainant's account which his Honour obviously regarded as important.
38 The facts which his Honour ultimately found were not consistent with an aggravated form of the offence, infringing the principle of De Simoni. Rather, his Honour described the circumstances in which the attempt had occurred.
39 Finally, the Crown submitted that s191 of the Evidence Act 1995 had no application. The Evidence Act does not apply to sentencing proceedings, absent an order by the sentencing Judge (s4(2)). Here, his Honour made no such order.
40 Was there error in respect of the use by his Honour of the complainant's statement? The material, including the complainant's statement, was admitted without objection. It was used extensively in submissions by counsel for FV. It was open to his Honour to have regard to it. It GAS v The Queen (2004) 217 CLR 198, the Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) set out a number of principles relevant to a "plea agreement" reached with the defendant at trial. The principles included the following: (at 211)
"30. Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed ( R v Olbrich (1999) 199 CLR 270). For that purpose, the judge must find the relevant facts ( Cheung v The Queen (2001) 209 CLR 1 at 9-11 [4]-[10]). 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 ( R v Olbrich at 278 [15]). The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor.
31. Fourthly, as a corollary to the third principle, 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. ... "
41 Certainly there are dangers where the parties choose to supplement an agreed statement of facts with additional material, as recognised by Studdert, Bell and Latham JJ in R v H (supra para 30). Indeed, the dangers were described by the Court in R v Bakewell (CCA (NSW), unreported, 27.6.96) where Gleeson CJ said this:
"Where a person is charged with a certain offence and the Crown accepts a plea of guilty to a lesser offence, it it often the case that the victim of the crime gives an account of the circumstances which, if true, means that the offender was, in reality, guilty of the more serious offence. That can place the sentencing judge in a very awkward position, as the facts of the present case demonstrate.
It was held in The Queen v De Simoni (1981) 147 CLR 383 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 cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.'
The consequence is that particular care may need to be exercised where a sentencing judge is invited by the Crown to receive a victim impact statement, and take that victim impact statement into account for the purpose of the sentencing process. As the facts of the present case illustrate, the victim impact statement may well be based upon an account of the facts which includes circumstances of aggravation of the kind referred to in De Simoni .
When that occurs, it will often be impossible to separate consideration of the impact upon the victim of the events, as he or she describes them, from consideration of what the impact might have been, absent the aggravating features of the case. Indeed, in many cases, as in the present, any attempt to do that would be hopelessly artificial.
What went wrong in the present case was the tender by the Crown of a victim impact statement in which a psychologist made an assessment, based upon the presence of aggravating circumstances which the judge was not entitled to take into account in the sentencing exercise."
42 Count 2 was the crime of aggravated attempted sexual intercourse without consent. The statement of the complainant (forming part of Ex A) certainly included the suggestion that the attempt succeeded and that there was penetration ("He only got part of it in ... "). However, the same sentence also included a contradiction ("... but he just couldn't get it to go in.") When his Honour came to sentence, he did so upon the basis of an attempt. He said as much repeatedly. He did not, in my view, breach the De Simoni principle.
43 As I read his Honour's remarks, the complainant's statement was used as an elaboration upon the agreed statement. It supplemented, not contradicted, that statement. The complainant's statement provided insight into the duration of the complainant's ordeal. FV had been persistent. It also identified an aspect of the complainant's distress. She had felt physical pain as the applicant parted her legs, and attempted to gain entry. The physical pain arose through that conduct, not through penetration.
44 Even were the Evidence Act to apply, the material tendered, and ultimately relied upon by his Honour, did not, in my view, "contradict or qualify an agreed fact" (cf s191(2)(b) of the Act; R v Palu [2002] NSWCCA 381, per Howie J at paras 39-40). I see no error in his Honour's approach.
45 Nor do I see unfairness. His Honour raised with counsel his concerns, which counsel sought to answer.
46 I would dismiss grounds 1, 2, 3 and 4.