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[1981] HCA 31
appellant. Grant special leave to appeal. Allow the appeal. Remit the matter to the Court of Criminal Appeal to deal with the grounds of the application not already considered by that Court.
An elderly woman was robbed after being hit on the head with a piece of wood, causing a wound needing stitches. The offender pleaded guilty to ordinary robbery, which carries a 14-year maximum. The judge was told the full facts including the blow and wound, described the crime as shocking, and imposed seven years. The appeal court cut the sentence to three years because the wounding and violence had not been written into the formal charge as 'aggravating features'. The High Court said the appeal court went too far: the violence that made the theft a robbery could and had to be taken into account because it was part of the very offence he admitted. The extra fact of a wound should not have been used to push the sentence higher if it was not formally charged, but the trial judge had not actually done that. The case was sent back to the appeal court to look again at whether seven years was too high for other reasons.
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Luciano De Simoni pleaded guilty in the District Court of Western Australia to an indictment that alleged he stole $180 from Florence Kathleen Scott "with actual violence" contrary to s. 391 of the Criminal Code (W.A.). The prescribed form of indictment for robbery was used; no circumstance of aggravation was pleaded. After the plea, prosecuting counsel informed the court that the victim was a 78-year-old woman and that De Simoni had struck her a heavy blow to the back of the head with a piece of wood, inflicting a 10 cm longitudinal scalp wound that later required eight sutures. Counsel for De Simoni did not dispute the use of personal violence or the wounding.
The trial judge, O'Dea D.C.J., sentenced De Simoni to seven years' imprisonment with hard labour and fixed a minimum term of four years before eligibility for parole. In his sentencing remarks the judge expressly noted that the Crown had not charged the aggravating feature of wounding, that the maximum penalty therefore remained 14 years, and that the crime was "shocking" because it involved striking a 78-year-old woman from behind with a piece of wood. He observed that De Simoni had later shown some compassion by washing the wound and leaving money, but regarded that as arising from belated realisation of what he had done.
De Simoni applied for leave to appeal against sentence on the ground that seven years was "inappropriately high and outside the range of a sound discretionary judgment". The Court of Criminal Appeal (Burt C.J., Smith and Jones JJ.) did not decide that ground. Instead it raised and upheld a different point: that the facts of wounding and use of personal violence were circumstances of aggravation within the second paragraph of s. 393 and, because they had not been charged in the indictment as required by s. 582, the sentencing judge was forbidden from having any regard to them. The Court therefore reduced the sentence to three years' imprisonment with an 18-month minimum term, expressly sentencing on a "consciously chosen artificial basis" that ignored the admitted violence and wounding.
The Crown applied for special leave to appeal to the High Court. Gibbs C.J. (Mason and Murphy JJ. agreeing), Wilson J. and Brennan J. each delivered separate reasons but unanimously held that the Court of Criminal Appeal had erred. Special leave was granted, the appeal was allowed, and the matter was remitted to the Court of Criminal Appeal to consider the original grounds of appeal that had not been decided. All members of the Court emphasised that the blow to the victim's head was the very act of actual violence that converted the theft into robbery under s. 391; therefore the sentencing judge was not only entitled but bound to take that conduct into account. There was disagreement on the precise scope of s. 582, but agreement that the sentencing remarks did not show the judge had impermissibly relied on the uncharged wounding to increase the penalty beyond what was warranted by the charged offence.
The High Court began from two principles it regarded as fundamental. First, a sentence must take account of all the circumstances of the offence. Second, and more important, no person may be punished for an offence of which he has not been convicted. Gibbs C.J. held that s. 582 reflects the second principle. Although the literal words of s. 582 appear to be directed only at the prosecutor, the Court implied a prohibition binding on the judge: it would be absurd if the prosecutor could not rely on an uncharged circumstance of aggravation yet the judge could do so. A circumstance of aggravation is defined in s. 1(1) as any fact that renders the offender liable to greater punishment than would apply if the offence were committed without that fact. Because wounding or personal violence under the second paragraph of s. 393 exposes an offender to life imprisonment rather than 14 years, those facts are circumstances of aggravation that must be charged if they are to be relied upon.
However, the Court drew a critical distinction. The definition of robbery in s. 391 already requires that the offender "uses or threatens to use actual violence to any person or property". When that actual violence is directed to a person, it overlaps with the "personal violence" mentioned in s. 393. The Court held that violence satisfying the element of the offence charged may—and indeed must—be taken into account even though the same facts could also constitute a circumstance of aggravation. Gibbs C.J. expressly disagreed with earlier Queensland dicta that sought to separate the two concepts. The blow to Mrs Scott's head was the only violence used; it therefore constituted the element of the offence to which De Simoni had pleaded guilty. The sentencing judge was obliged to sentence on the basis that that violence had occurred.
The wound itself was characterised as a distinct aggravating fact. All judges accepted that the trial judge should not have increased the sentence on the basis of the wound if it had not been charged. Yet on a fair reading of the sentencing remarks the judge had referred to the wounding only in the context of De Simoni's subsequent act of washing the wound, and had expressly acknowledged that the aggravating feature had not been charged. The increase in penalty was attributed to the "shocking" nature of striking an elderly woman from behind with a piece of wood—the very conduct that satisfied the charged offence. Because the Court of Criminal Appeal had proceeded on the erroneous footing that the trial judge had relied on the uncharged wounding, its reduction of sentence could not stand and the matter had to be remitted.
Wilson and Brennan JJ. expressed a somewhat broader view of s. 582. They regarded the section as a direction to the officer presenting the indictment rather than a comprehensive code governing the sentencing judge's factual findings. Once the plea or verdict fixes the maximum penalty at 14 years rather than life, the judge is free to sentence on the real facts admitted before him, provided the sentence does not exceed the maximum for the offence as charged. Brennan J. emphasised that a circumstance of aggravation affects the limits of sentencing power, not the discretionary choice within those limits. Artificiality in sentencing is to be avoided unless statute clearly requires it. Because the facts were admitted and not contested, no denial of jury trial occurred and the judge was entitled to have regard to the admitted blow and resultant wound when fixing a sentence within the 14-year maximum. All members of the Court therefore concluded that the Court of Criminal Appeal had erred in reducing the sentence on the ground it chose.
Before R v De Simoni the law was unsettled. The common-law authorities commencing with Dominus Rex v Turner (1718) and crystallising in R v Bright [1916] 2 K.B. 441 established that a sentencing judge must not attribute to an offender guilt of a more serious offence or a statutory aggravation that had not been charged. Reg v Toomey (1964) and Reg v Foo (1976) applied that principle to reduce sentences where judges had taken account of violence or trafficking intent not formally alleged. Tasmanian authority in Lovegrove v The Queen [1961] Tas. S.R. 106 similarly prevented a judge from sentencing on the basis of an intention to cause grievous bodily harm when that had not been charged. However, Victorian authority in Reg v Sawyer [1967] V.R. 725 had allowed a judge to find causation of death for penalty purposes even though the jury had acquitted of manslaughter. New Zealand decisions required circumstances of aggravation to be pleaded but left open whether a judge could still have regard to them if the maximum for the lesser offence was not exceeded.
Section 582 of the Western Australian Code had not previously been authoritatively construed on this point. Queensland decisions on the analogous s. 344 were inconsistent: Hopkins v Matthews; Ex parte Hopkins [1960] Qd. R. 396 prevented a magistrate from considering sexual aggravation not pleaded, while Cronin v Hamilton-Smith; Ex parte Hamilton-Smith [1958] Qd. R. 24 appeared to allow punishment within the lower maximum even though the circumstance existed. The interaction between the element of actual violence in s. 391 and the aggravating circumstance in s. 393 had produced conflicting dicta, notably in R v Holloway [No. 2] [1937] Q.W.N. 2.
After De Simoni the law in Western Australia is that a sentencing judge must sentence consistently with the offence charged and the maximum penalty fixed by the indictment or plea. The judge may—and where the fact constitutes an element of the offence must—take into account all admitted or proved circumstances surrounding that offence. A distinct circumstance that would expose the offender to a higher statutory maximum (for example, wounding, being armed, or being in company under s. 393) may not be used to increase the sentence if it has not been charged, but the overlap between the element of violence in robbery and the aggravating circumstance of personal violence is resolved in favour of allowing the judge to consider the violence that makes the conduct robbery. Sentencing remarks are read fairly as a whole; a mere reference to a wounding does not establish that the judge impermissibly relied upon it if the penalty can be explained by reference to the charged elements. The decision has removed one source of artificiality in sentencing while preserving the safeguard that an offender cannot be given the higher maximum without the circumstance being formally alleged and either admitted or found by a jury.
Gibbs C.J. stated: "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." In plain English this means a judge looks at everything that happened but must not sentence someone for a worse crime that was never charged.
On the construction of s. 582 Gibbs C.J. said: "a judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it." Translation: if the prosecution wants to use a fact that unlocks a higher maximum penalty, it must write that fact into the charge; otherwise the judge cannot use it to push the punishment into the higher range.
Brennan J. observed: "A circumstance of aggravation affects the limits of the sentencing power, not the sentence to be imposed." This means the pleaded circumstance sets the ceiling (14 years or life) but once the ceiling is fixed the judge still chooses the sentence on the real facts within that ceiling.
Wilson J. summarised the duty of the sentencing judge: "the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict." Plain English: once a person pleads guilty to robbery the judge must sentence for a real robbery, including the violence that made it robbery, and cannot pretend the violence did not happen.
The Court unanimously rejected the proposition that the sentencing judge had to ignore the admitted blow because it could also be characterised as personal violence under s. 393. Gibbs C.J. noted that "there is no difference between using actual violence to any person, and using personal violence to any person." The practical translation is that the violence that turns theft into robbery is part of the offence and cannot be air-brushed out of the sentencing exercise.
De Simoni is triggered whenever an offender is charged with an offence that contains an element capable of overlapping with a circumstance of aggravation that carries a higher maximum, and that circumstance has not been formally pleaded. The classic robbery example is a theft accompanied by a blow that both supplies the "actual violence" required by s. 391 and causes a wound or constitutes personal violence under s. 393. The precedent applies equally to any offence where the Code or statute lists aggravating facts (armed, in company, wounding, etc.) that elevate the maximum penalty.
The principle is engaged on a plea of guilty when the prosecutor reads a statement of facts that includes aggravating detail not pleaded, and the defence does not dispute those facts. It is also engaged after jury verdict where the jury's findings necessarily establish some but not all aggravating facts. The case does not apply if the aggravating fact is entirely distinct from the elements of the charged offence and the judge does not rely on it to increase the sentence. Nor does it apply if the aggravating circumstance is charged and either admitted or found by the jury; in that event the higher maximum is available and the judge may sentence up to it on the facts proved.
The decision is particularly important in jurisdictions using codes that define "circumstance of aggravation" by reference to increased maximum penalty and contain a provision equivalent to s. 582. It governs the proper approach to sentencing remarks: a court reviewing sentence must read those remarks as a whole and ask whether the judge in substance sentenced for the uncharged higher offence or simply took account of the real facts of the charged offence.
The judgment itself carefully reviews and approves the line of authority commencing with R v Bright and Lovegrove v The Queen, treating those decisions as correctly stating the common-law principle that a judge must not sentence on the basis that the offender is guilty of a statutory aggravation not charged. Gibbs C.J. regarded Reg v Sawyer as having been decided per incuriam because it allowed a judge to find a fact that would have supported a more serious offence. The Court distinguished cases in which the aggravating fact was an element of the offence from those in which it was purely additional. It approved the Queensland decision in Hopkins v Matthews; Ex parte Hopkins as consistent with its own conclusion on s. 582 while leaving open the correctness of Cronin v Hamilton-Smith.
Wilson J. accepted that R v Bright could be reconciled with the view that a judge may have regard to all surrounding circumstances provided the statutory maximum fixed by the indictment is not exceeded. Brennan J. cited R v Bright and Lovegrove for the proposition that a contested issue of fact that could have been submitted to a jury cannot be resolved adversely to the offender by the sentencing judge. Thus De Simoni both affirmed and refined the earlier authorities, making clear that overlap between offence elements and aggravating circumstances is resolved in favour of allowing the judge to consider the facts that constitute the offence.
The decision has stood as the authoritative statement of the law on uncharged circumstances of aggravation in Western Australia and has been treated as persuasive in other Code jurisdictions. It has not been overruled or relevantly distinguished on the core propositions set out above. The remission to the Court of Criminal Appeal to consider the original grounds of appeal illustrates the Court's insistence that an erroneous legal premise should not deprive an appellant of proper appellate review on the merits.
The High Court left open the precise weight to be given to an admitted but uncharged circumstance of aggravation when the judge is constrained to the lower maximum. Gibbs C.J. accepted that the judge could not "rely upon" the wounding but did not define the boundary between permissible contextual awareness and impermissible reliance. Wilson and Brennan JJ. appeared more willing to allow the judge to "invest that circumstance with such weight as he thinks fit" provided the sentence remains within the 14-year ceiling. Future cases may need to explore how a judge is to "put out of his mind" a wounding that is inextricably linked to the violence that constitutes the offence.
Another open question is the position where the defence contests the aggravating fact on a plea of guilty. The Court noted that a judge may resolve disputes by receiving evidence, but Brennan J. emphasised that where statute makes the issue one for jury determination the judge cannot usurp that function. The boundary between facts that must be left to a jury and those that may be decided on the balance of probabilities by a sentencing judge remains to be worked out in later authority.
The Court did not decide whether jurisdictional consequences (trial in District Court rather than Supreme Court) affect the construction of s. 582. Wilson J. observed that many discretions are committed to the Crown in the administration of criminal justice, but the point was not explored. Nor was the Court required to consider cases in which the Crown positively accepts a plea to a lesser offence while tendering facts that would support the greater offence. The precise limits of that practice, and whether De Simoni applies to them, remain for future decision.
Finally, the interaction between s. 582 and the common-law principle against punishing for uncharged offences may require further elucidation where the aggravating circumstance does not alter the maximum penalty but is listed as a statutory aggravating factor for other purposes. The judgment is grounded in the Code definition that ties aggravation to increased liability to punishment; its application outside that definition was left open.
The application of s. 582 leads to difficulty in some cases of robbery. Under s. 391, it is an element of the offence that the offender has used or threatened to use actual violence to any person or property. Under s. 393 a circumstance of aggravation is that the offender wounds or uses any other personal violence to any person. In my opinion there is no difference between using actual violence to any person, and using personal violence to any person. Actual violence means no more than physical force which is real and not merely threatened or contemplated. Personal violence means violence to the person - bodily violence. Under s. 391 the relevant element of the offence may be satisfied by actual violence to property or by threatened violence to the person, and in those cases there will not necessarily exist any circumstance of aggravation. However the necessary element required by s. 391 may also be satisfied by actual violence to any person, and where that is the case the element of the simple offence will also constitute a circumstance of aggravation. With all respect I cannot agree with the view expressed by Webb and Henchmann JJ. in R. v. Holloway [No. 2] [20] that the first part of s. 411 of the Criminal Code Q. (which corresponds to s. 393 of the Criminal Code W.A.) applies where a person uses violence to property or threatens to use violence and that the second part of the section applies where the offender wounds the person or uses any other personal violence. It is true that under s. 391 the actual or threatened violence must be used for a particular purpose which is not mentioned in s. 393, but that does not alter the fact that personal violence which constitutes a circumstance of aggravation under s. 393 may be the same as the actual violence which is an element of the offence under s. 391.
If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within s. 393. On the other hand, if the actual violence used resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter.
For these reasons it was not correct for the Court of Criminal Appeal to take the view that the trial judge, in imposing sentence, should have disregarded the fact that the respondent had used actual violence to the person of his victim, since that was an element of the offence with which he was charged and to which he pleaded guilty. On the other hand their Honours were correct in taking the view that it would not have been right for the trial judge to have had regard to the fact that the respondent had wounded his victim. However, in my respectful opinion the trial judge did not increase the sentence which he imposed because of the fact that the victim was wounded. He expressly mentioned that that circumstance of aggravation had not been charged, and then went on to refer to the facts in a way which shows that he treated the use of the actual violence as a matter which warranted substantial punishment. However, the manner in which he mentioned the fact that the victim was wounded - in relation to the act of the applicant in washing the wound - does not indicate that he relied upon the wounding in deciding upon the sentence.
I consider that the Court of Criminal Appeal was wrong in the conclusion which it reached, not in relation to the effect of s. 582, but because it concluded that the trial judge had relied upon a circumstance of aggravation in imposing his sentence. The trial judge did rely upon the circumstance that the applicant used violence, but that circumstance was charged in the indictment as an element of the offence. Normally special leave to appeal would not be given to enable this Court to consider whether the Court of Criminal Appeal had fallen into error in thinking that the trial judge also relied upon the circumstance of wounding, but the other issues are of sufficient importance to warrant the grant of special leave.
I would grant special leave to appeal and would allow the appeal. I would remit the matter to the Court of Criminal Appeal to enable it to give consideration to the grounds of the application with which it did not find it necessary to deal.
I would grant special leave to appeal and would allow the appeal for the reasons given by the Chief Justice.
The only questions raised concern the interpretation and application of several sections of the Criminal Code W.A.. I agree with the Chief Justice's interpretation of s. 582, which was also that of the Court of Criminal Appeal of Western Australia. Sections 391 and 393 are difficult to reconcile; I am prepared to accept the Chief Justice's view of their operation in this case.
Special leave should be granted, the appeal allowed and the matter remitted to the Court of Criminal Appeal.
I have had the advantage of reading the reasons for judgment prepared by Brennan J. Apart from the matter of sentencing practice to which I shall refer, I agree substantially with what his Honour has written. In particular I agree with respect with the two basic propositions developed by him. The first is that Judge O'Dea was obliged to have regard, as he did, to the blow which the applicant delivered to the head of his victim because that assault was the actual violence which constituted an element of the offence of robbery to which he pleaded guilty. Secondly I agree that s. 582 of the Criminal Code W.A. ("the Code") did not require the trial judge, in his consideration of an appropriate punishment, to disregard the wounding which resulted from the blow because it was not alleged in the indictment as a circumstance of aggravation. In my opinion, s. 582 is a direction to the Attorney-General or other officer responsible for the presentation of an indictment. That document informs the Court of the offence which is alleged to have been committed, and the particularization of a circumstance or circumstances of aggravation serves to identify the maximum punishment to which, in the event of conviction, the offender is liable. This is the only purpose for which the Crown can be said to "rely" on the circumstance of aggravation.
I turn now to consider certain aspects of the duty which rests on the sentencing judge. Some principles are well established. The primary rule is that the judge must sentence the prisoner for the offence of which he has been convicted. He must not, even though the actual sentence may be within the range allowed for that offence, sentence for some other more serious offence which he is satisfied has been committed: R. v. King [21] ; Lovegrove v. The Queen [22] ; Reg. v. Boyd [23] ; Reg. v. Foo [24] ; Reg. v. Harrison [25] ; Reg. v. Toomey [26] ; R. v. Bright [27] . On the other hand, the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict: R. v. King [28] ; Reg. v. Boyd [29] ; Reg. v. Marshall [30] ; Reg. v. Harris [31] . But he must not punish the prisoner for additional offences with which he has not been charged: Reg. v. Reiner [32] ; Reg. v. Huchison [33] .
Applying these principles to the present case I have come to the conclusion that Judge O'Dea was entitled, and indeed bound, to take all the circumstances of the offence including the wounding into account. The basic proposition on which that conclusion rests is that the Code creates only one offence of robbery, namely, the offence constituted by s. 391. The presence of a "circumstance of aggravation", being a circumstance which if charged in the indictment and proved exposes the offender to liability to a greater maximum period of imprisonment, does not make the offence a different offence; it remains the crime of robbery, that is to say, conduct contrary to s. 391, notwithstanding the somewhat strange wording of that section. Section 393 is concerned only with punishment; it does not create a more serious offence of "aggravated robbery". The point may be illustrated by contrasting the provisions of the Larceny Act 1916 U.K.. Section 23 of that Act created two distinct offences of robbery which are described in Archbold: Criminal Pleading Evidence and Practice, 36th ed. (1966), pp. 644 ff. as simple robbery (s. 23 (2)), and robbery with violence (s. 23 (1)) respectively. So in Toomey [34] , the prisoner was sentenced to six years' imprisonment for simple robbery, his plea of not guilty to robbery with violence having been accepted by the Crown. The Court of Criminal Appeal concluded that the element of violence which formed part of the graver offence had been taken into account, and reduced the sentence to four years to conform to the conviction of simple robbery.
In my opinion, the definition of circumstance of aggravation in s. 1 of the Code affords no support for the view that the presence of such a circumstance creates a new and graver offence so as to attract the sentencing principles to which I have referred. That definition provides that:
The term "circumstance of aggravation" means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance. It is clear that only one offence is in contemplation.
I pause to remark on the obvious fact that a circumstance of aggravation will assume a different significance in the mind of the trial judge according to whether it is or is not charged in the indictment and so is or is not incorporated in the verdict. The distinction when applied to the present case lies in the fact that all the circumstances of the offence together with the other considerations to which the judge has regard fall to be evaluated in the context of an offence which exposes the offender to a maximum punishment of fourteen years, as compared with life imprisonment had the aggravating circumstance been charged in the indictment.
The case of Bright [35] is, I think, consistent with the view I have expressed, although it was a rather special case. It occurred in wartime. The appellant pleaded guilty to two offences under the Defence of the Realm (Consolidation) Regulations 1914 (U.K.) each of which carried a maximum penalty of penal servitude for life, subject to a proviso that if the jury found that the offence was committed with the intention of assisting the enemy then the maximum sentence was enlarged to "death or any less punishment". Avory J. sentenced the prisoner to life imprisonment, remarking that had he not pleaded guilty the jury would almost certainly have found the intention of assisting the enemy in which event he would without the slightest hesitation have imposed the sentence of death. The regulations expressly required that the element of statutory aggravation be regarded only if so found by a jury. The Court of Criminal Appeal reduced the sentence to ten years' imprisonment. I do not find the reasoning of the Court to be entirely clear, but I infer that their Lordships, while not disapproving of the fact that Avory J. called evidence to establish the motive with which the prisoner had committed the offences, took the view that he had nevertheless given too much weight to his conclusion. In other words, he sentenced the prisoner having regard to the fact that the regulations prescribed a greater maximum punishment for an offence committed with an intention to assist the enemy, and in so doing dealt with him on the footing that he had been guilty of that aggravating fact. He should have regarded the motive merely as one circumstance surrounding the offence rather than as a matter of statutory aggravation. I think this inference is supported by the passage in the judgment of their Lordships which reads [36] :
if the case be such that the prisoner's motive in committing the offence is one of the questions which the jury have to decide the judge must not attribute to the prisoner a motive which has been negatived by the verdict of the jury, and he must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation. 1. [1916] 2 K.B. 441. 2. [1916] 2 K.B., at pp. 444-445.
In New Zealand, although in the Criminal Code there is no counterpart to the second paragraph of s. 582, it has been established that a circumstance of aggravation which has the effect of exposing the offender to a higher maximum punishment should be specified in the indictment: R. v. Kirk [37] ; R. v. Martini [38] . In R. v. Goodman [39] , Cooper J., while affirming the principle laid down in Kirk , was of the view that he was entitled nevertheless to have regard to the higher punishment even though the circumstance of aggravation was not averred in the indictment because the depositions in the case made the presence of that allegation plain, and it was established by the evidence. However, that view was plainly disapproved by the Court of Appeal in Martini .
The view which I have propounded, namely, that the sentencing judge is not required to ignore a circumstance of aggravation merely because it has not been charged in the indictment, has the merit of reducing the occasions when the sentence proceeds on the basis of an artificially constructed set of facts. There are occasions, of course, when such a course is inevitable, as when a jury's verdict negatives the presence of an element in the offence charged which the trial judge may feel has been established. But ordinarily the smooth administration of criminal justice is enhanced if the judge can proceed to sentence, consistently with the offence and maximum punishment established by the plea or verdict, on the basis of the facts surrounding the offence as he finds them to be. With respect, I do not think that a judge, while bound to have regard, for example, to the degree of violence which accompanies the theft in framing an appropriate sentence for the crime of robbery is required to put out of his mind the fact that that violence caused a wounding, if it be the fact, or, that the offence was committed by the prisoner in company with another person or that a firearm was involved. So long as the judge bears steadily in mind the general principles to which I have referred and that, whatever the circumstances may be, the maximum punishment for the offence of which the prisoner has been convicted is fourteen years, and not life imprisonment, there can in my opinion be no misapplication of principle and no miscarriage of justice.
If, following a plea of guilty, the prisoner disputes the truth of any of the circumstances alleged to constitute the offence, then with respect I think it is for the judge to resolve that disputation; he will do this either by disregarding the allegation if it is of little consequence, or by receiving evidence to establish the facts to his satisfaction: cf. Bright [40] . I would not draw any distinction at this point between the general facts surrounding the offence and a "circumstance of aggravation". In short, as I understand the relevant provisions of the Code, if a circumstance of aggravation is not charged in the indictment, then no special significance can therafter attach to it. Thenceforth, it will simply form part of the total circumstances surrounding an offence, to be established to the judge's satisfaction and to be invested with such weight as he thinks fit in deciding upon an appropriate sentence.
Counsel for the respondent adverted to the jurisdictional implications of the case in that by refraining from charging the circumstance of aggravation in the indictment the trial was held in the District Court instead of the Supreme Court. But in my opinion this is not a consideration which throws any light on the meaning of s. 582. There are many discretions committed to the Crown in the administration of criminal justice.
In his reasons, Burt C.J., with whom Jones J. concurred, cited with apparent approval two decisions of the Supreme Court of Queensland: Hopkins v. Matthews; Ex parte Hopkins [41] ; Cronin v. Hamilton-Smith; Ex parte Hamilton-Smith [42] . The view taken by the Court in the former case was that because, in a complaint alleging an aggravated assault a particular circumstance of aggravation had not been stated in the complaint the magistrate was precluded from taking that circumstance into consideration. With respect, I think that the view is to be seen in its statutory context. Section 344 of the Queensland Criminal Code, after setting out the circumstances of aggravation any one of which permitted a court of petty sessions in dealing with an offence of common assault to have access to a greater range of punishment, expressly provided:
An offender shall not be punished as for an assault of an aggravated nature within the meaning of this section unless he has been charged therewith and the circumstance or circumstances of such aggravation have been stated in such charge. Both the location and the wording of this provision may materially distinguish it from the meaning and application of the second paragraph of s. 582, but in any event the provision is not before us and I express no opinion upon it. 1. [1960] Qd. R. 396. 2. [1958] Qd. R. 24.
The second Queensland case to which the learned Chief Justice referred, that of Cronin v. Hamilton-Smith, was cited by counsel in argument in Hopkins v. Matthews but not referred to in the judgments of the members of the Court. There is a passage in the reasons of Mack J., with whom Stanley J. agreed, which suggests that in this case a different approach was taken [43] .
In each case the person assaulted is a female and the circumstance of aggravation exists whether or not it is stated in the complaint; but if it is not stated in the complaint, the defendant cannot receive the punishment under s. 344. However, as I have said, the provisions in question are readily distinguished, and it is unnecessary to pursue the matter. 1. [1958] Qd. R., at p. 32.
I have come to the conclusion that the learned trial judge did not err in so far as he may have had regard to the wounding when sentencing the respondent. His task was to consider the circumstances of the offence together with the matters pleaded in mitigation, and to determine an appropriate sentence for an offence carrying a maximum punishment of fourteen years.
The Court was asked, in the event of special leave being granted, and the appeal allowed, to remit the matter to the Court of Criminal Appeal in order that it proceed to deal with the respondent's appeal against the sentence on the grounds advanced by him.
I would therefore grant special leave to appeal, allow the appeal, set aside the decision of the Court of Criminal Appeal and remit the matter to that Court to be further dealt with according to law.
The applicant pleaded guilty before the District Court of Western Australia to a charge on indictment that he stole from one Florence Kathleen Scott with actual violence $180 in money, the property of the said Florence Kathleen Scott. Judge O'Dea sentenced him to imprisonment with hard labour for seven years with a direction that he serve a minimum period of four years' imprisonment before being eligible for parole. On appeal to the Court of Criminal Appeal, the sentence was reduced to three years' imprisonment with a direction that he serve eighteen months' imprisonment before being eligible for parole. The Crown seeks special leave to appeal to this Court in order to canvass the ground upon which the Court of Criminal Appeal reduced the sentence, a ground which turns upon some provisions of the Criminal Code of Western Australia.
The indictment, following the form prescribed, charged the crime of robbery, which is defined by s. 391 of the Code:
Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.
Section 393, which prescribes the maximum punishment for robbery to be fourteen years' imprisonment with hard labour, provides for a greater maximum punishment when an offender is convicted of robbery with one or more of the circumstances of aggravation specified in the second paragraph of the section:
If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds or uses any other personal violence to any person, he is liable to imprisonment with hard labour for life, with or without whipping.
At or immediately before the time of the robbery, the appellant wounded his victim, Mrs. Scott, by hitting her on the head with a piece of wood. The prosecutor's statement of the material facts showed that Mrs. Scott was an aged woman living alone, that the appellant asked Mrs. Scott for money, and that she refused. The prosecutor stated:
She turned her back on him and he struck her a heavy blow on the back of the head inflicting a wound which apparently was some four inches in length to the scalp at the rear of the skull - a 10cm longitudinal wound - which, when she went to the hospital the next day, required some eight sutures to her head. In passing sentence, Judge O'Dea took account of the act of violence alleged, and his Honour was thereby satisfied that he should impose substantial punishment.
The respondent succeeded in his appeal against sentence to the Court of Criminal Appeal on the ground that the sentencing judge ought not to have taken any circumstance of aggravation into account unless the Crown had charged the respondent in the indictment either with wounding or with some other personal violence as a circumstance of aggravation. The indictment did not charge a circumstance of aggravation. A circumstance of aggravation is defined by s. 1 of the Code as "any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance". Section 582 of the Code requires, inter alia, that:
If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.
The Court of Criminal Appeal construed s. 582 as requiring the judge to leave the circumstance of aggravation out of account in imposing sentence although the circumstance of aggravation is admitted by the offender. Burt C.J., with whom Jones J. agreed, said:
If it is not charged in the indictment it cannot be relied upon. I am unable to accept the submission that to make use of an aggravating circumstance in the sense of the definition of that expression in support of a judgment that the offence disclosed by the fact is a "shocking crime" deserving of "substantial punishment" is not to rely upon the circumstance of aggravation within the meaning of s. 582. Smith J. was of the opinion that if the prosecution fails to plead a circumstance of aggravation the Crown must be deemed to have "waived" the circumstance which might have supported the greater penalty and that the trial Judge must impose his sentence without reference to that aggravating circumstance irrespective of how convincing the Crown evidence might appear to be from the depositions and irrespective of whether there is any challenge by the accused to the accuracy of that evidence. The outcome of such an approach inevitably, of course, will be that the sentencing Judge will impose his sentence not on the true facts but on a consciously chosen artificial basis such as sometimes occurs in the case of the acceptance by the Crown of a guilty plea to a lesser charge.
The Court of Criminal Appeal held that no regard should have been had to the fact that the respondent wounded his victim and used personal violence to her. In Smith J.'s phrase, the sentence substituted by the Court of Criminal Appeal was imposed "on a consciously chosen artificial basis".
To omit consideration of the personal violence done to Mrs. Scott is to omit consideration of conduct constituting an essential element of the offence to which the respondent had pleaded guilty. The prosecutor's statement of facts did not disclose any use of actual violence or any threat to use actual violence to Mrs. Scott other than the blow upon her head, and counsel for the respondent expressly denied that there was any other violence used or threatened. It was accepted that the respondent hit Mrs. Scott in order to obtain money, and the hitting of Mrs. Scott was thus the only actual violence to which that allegation in the indictment related.
It might be thought that an act of violence alleged to constitute an element in a crime of robbery under s. 391 cannot constitute a circumstance of aggravation under s. 393, or, conversely, that personal violence falling within the latter section cannot constitute an element in the crime of robbery. Clearly an act of personal violence can constitute a circumstance of aggravation although it is not the violence which constitutes an element in the robbery, for s. 393 comprehends acts of personal violence committed "after the time of the robbery", and it has long been settled that violence after the taking of property cannot turn the stealing of that property into robbery (see the note to R. v. Gnosil [44] ). But the relevant question in the present case is whether the same act of violence can constitute an element in robbery under s. 391 and a circumstance of aggravation under s. 393. The statutory definition of circumstances aggravating the offence of robbery began in 1837 (7 Will. 4 & 1 Vict. c. 87) when a number of statutes were passed to restrict the application of the death penalty and to limit the discretion to inflict it by prescribing the aggravating circumstances which were thought to warrant the imposition of that sentence (see Radzinowicz, A History of English Criminal Law (1968), vol. 4, p. 319). Prior to the 1837 Act, robbery of any kind was a capital felony (7 & 8 Geo. IV c. 29, s. 6).
Under the 1837 Act, the death penalty was reserved for cases where the robber "at the Time of or immediately before or immediately after such Robbery shall stab, cut, or wound any Person" (s. 2). And by s. 3, a punishment more severe than the punishment prescribed by s. 6 for simple robbery was provided where the robber at any of the times mentioned should "beat, strike or use any other personal Violence to any Person".
By a consolidating Act in 1861 the 1837 Act was repealed, and the circumstances of aggravation specified in ss. 2 and 3 of the 1837 Act were combined. Section 43 of the 1861 Act (24 & 25 Vict. c. 96) provided, inter alia, that if the robber, at the time of or immediately before or immediately after the robbery, should "wound, beat, strike, or use any other personal Violence to any Person", he should be liable to more severe punishment than that provided for simple robbery. Robbery with violence then ceased to be a capital felony, and there was no further need to distinguish between wounding and other forms of personal violence in the definition of aggravated robbery. With the passing of the Larceny Act 1916 (6 & 7 Geo. V. c. 50), wounding was omitted, and personal violence remained as the aggravating factor (s. 23 (1) (b)).
The relevant provisions of the 1861 consolidating Act were followed in Queensland in 1865 (29 Vict. No. 6, s. 48), and furnished Sir Samuel Griffith with a model for s. 420 of his draft Code which was subsequently enacted in Western Australia as s. 393. The differences between the 1865 Queensland provision, the draft Code and s. 393 of the Western Australia Code are immaterial for present purposes. Wounding is retained as a distinct circumstance of aggravation.
The legislative history of s. 393 does not suggest that wounding or an act of personal violence cannot constitute both actual violence as an element in a robbery and a circumstance of aggravation which establishes the robbery as an aggravated robbery. It could not have been thought in 1837 that a robber should escape the death penalty if he wounded his victim in order to effect the larceny, though he would have been liable to suffer that penalty if he wounded his victim or another person for some other purpose. It follows that, if wounding or other personal violence within the meaning of that term in s. 393 is used against a victim "in order to obtain the thing stolen or to prevent or to overcome resistance to its being stolen" robbery is thereby committed. It is nonetheless robbery for being aggravated robbery.
In the present case the blow on the head of Mrs. Scott was capable of supporting a charge of robbery with personal violence; it nevertheless supported and was an element of the charge of robbery alleged in the indictment and admitted by the respondent's plea of guilty. In strictness, the wound caused by the blow was not alleged in the indictment or admitted by the plea, and it was thus an additional fact which might have been relied on as a circumstance of aggravation beyond the actual and personal violence used in the robbery. Whatever may be said of the regard which the sentencing judge ought to have had to the wound, it is impossible to exclude from his consideration the blow which constituted an element of the crime of which the respondent had been convicted and for which the sentence was to be imposed. A sentence ought not be imposed on a footing which is inconsistent with the antecedent conviction, and once the blow was revealed to be the actual violence used in the robbery Judge O'Dea was bound to have regard to it.
I am unable, in any event, to attribute to the second paragraph of s. 582 the effect of precluding a sentencing judge from having regard to relevant and admitted facts merely because those facts could support an indictment for an aggravated offence and the circumstance of aggravation is not expressly charged. By definition a circumstance of aggravation is a fact rendering an offender liable to greater punishment; it is not a fact which makes the proper sentence for the offender's conduct greater than the sentence which would be appropriate if the circumstance of aggravation did not exist. A circumstance of aggravation affects the limits of the sentencing power, not the sentence to be imposed.
In the procedure for determining whether a person is liable to punishment, and the extent of that liability, the first step before the court is the presentation of the indictment (s. 578). The trial is deemed to begin when the accused person is called upon to plead to the indictment (s. 612), and the liability of the accused person to be punished is determined by the verdict returned upon the indictment (see ss. 653, 654), or by his plea of guilty to an offence of which he may be convicted on that indictment (s. 654) as the case may be. Section 582 is part of Ch. LXII, a chapter concerned with the drawing, signing, presentation and amendment of indictments. The section relates to the form in which an indictment should be framed in order to define the issues which, if not admitted, must be submitted to the verdict of a jury in order to determine whether the accused person is liable to punishment and the extent of that liability. Reliance upon a circumstance of aggravation, in the context of s. 582, means a dependence upon a particular circumstance in order to establish the extent of the accused person's liability to punishment. At the time when s. 582 is to have effect, that is, when the indictment is signed and presented, it is premature for the Crown to intend to rely upon a circumstance as relevant to the exercise of a sentencing discretion; but it is not premature for the Crown formally to state its contention that the accused person's conduct makes him liable to punishment to a greater extent than he would be if he were guilty only of an unaggravated offence. If the accused person by his plea admits what is alleged against him, the extent of his liability is established according to the tenor of his plea. If the accused person does not admit what the indictment alleges against him, his liability to punishment and the extent of that liability must be determined by the verdict returned after a trial upon the indictment. Once an offender's liability to punishment is determined by plea or verdict, the effect of the indictment is spent. I do not construe s. 582 as affecting the imposition of sentence in accordance with the liability so determined.
Although, in my opinion, s. 582 does not have the effect attributed to it by the Court of Criminal Appeal, there is a rule of sentencing practice which may preclude a sentencing judge from taking a circumstance of aggravation into account in exercising a discretion within the limits determined by the plea or verdict. It is a rule of sentencing practice that an allegation made but not admitted or otherwise proved against an offender cannot be taken into account in passing sentence upon him. Ordinarily, a contest upon an issue of fact is resolved by the sentencing judge after hearing evidence relating to that fact if the fact has not been determined by a jury verdict and if the fact is of sufficient importance to justify a hearing. But where statute provides that a particular issue is susceptible of resolution by the verdict of a jury, a sentencing judge cannot deny an offender his right to a jury trial of that issue, and himself assume the function of finding the facts. Where there is a contest as to a circumstance of aggravation which might have been alleged in an indictment and submitted to a jury's determination, but which was not so determined, the judge cannot impose sentence on the footing that the circumstance of aggravation has been established. The Court of Criminal Appeal so held when it reduced the sentence in R. v. Bright [45] . Darling J., delivering the Court's judgment, said [46] that a judge "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation". (and cf. Lovegrove v. The Queen [52] ; Reg. v. Huchison [53] ). Where there is a contested issue of fact affecting the sentence which ought to be imposed it would be wrong to deny an offender the right to have a jury's verdict upon the contested issue, and to sentence him as though the issue had been resolved adversely to him. But where adverse facts are admitted and no resolution of a contested issue is required the offender is denied no right and loses no safeguard if the agreed facts are taken into account in passing sentence upon him.
If in cases where the facts are agreed, artificiality were to conceal or distort the true circumstances of the offender's conduct, the administration of criminal justice would be at risk. Unless statute clearly compels the adoption of artificiality in sentencing it should be avoided, for it distorts the weighing of the factors material to the exercise of a sound discretion. Sentencing evokes much judicial anxiety and rightly so; and it would not be in the public interest (nor oftentimes in the interests of an offender) to make the task of sentencing more difficult by requiring the judge to leave out of account the uncontested circumstances of the case before him.
In my view, neither s. 582 nor any rule of sentencing practice required artificiality in the sentencing of the respondent. The section had no relevant part to play, and no rule precluded Judge O'Dea from having regard to the blow on Mrs. Scott's head and to the resultant wounding once those facts were admitted.
It follows that the ground upon which the Court of Criminal Appeal allowed the appeal was erroneous and that the application for special leave to appeal should be granted and the appeal allowed. The Court of Criminal Appeal has not considered the respondent's appeal to it except upon the ground canvassed here. The matter should be remitted to the Court of Criminal Appeal to be further dealt with according to law.
R
De Simoni
High Court of Australia Gibbs C.J. Mason, Murphy, Wilson and Brennan J. R v De Simoni [1981] HCA 31
Grant special leave to appeal. Allow the appeal. Remit the matter to the Court of Criminal Appeal to deal with the grounds of the application not already considered by that Court.