Council for the Crown: Mr G. Flatman, QC Ms K. Judd and Mrs C. Quin

Solicitors for the Crown: P.C. Wood, Solicitor for Public Prosecutions

Council for the Applicant: Mr P.F. Tehan and Mr O.P. Holdenson

WINNEKE P, BROOKING JA, RAYNE JA and SOUTHWELL AJA 1. On 2 August 1991, the applicant, Ivan Leonard Storey, was apprehended by police whilst driving his car in Inglis Street, Ballan. Police searched his vehicle. In the rear of it they found a small brown suitcase in which there was a plastic package containing 1.7 kg of powder. When analysed, the powder was found to contain 114 grams of methylamphetamine. This, by statutory definition, was a traffickable quantity. Also in the suitcase, the police found a pistol.

2. It was not until 28 May 1996 that the applicant was presented before the County Court at Melbourne. He was charged with one count of trafficking in a drug of dependence, contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981, and one count of being in possession of such a drug contrary to s.73 of that Act. Pursuant to s.359AA Crimes Act 1958 he consented to a summary offence of possessing a pistol as a prohibited person, contrary to s.31(1) Firearms Act 1958, being heard and determined by the County Court.

3. The applicant pleaded guilty to each of these offences. He admitted 26 prior convictions from 13 court appearances between 1977 and 1990. No oral evidence was called on the plea and the only evidence tendered to the Court other than the depositional material was a psychiatric report from Dr. Walton, dated 22 May 1996.

4. On 3 June 1996, the learned sentencing judge sentenced the applicant to 1 year 8 months on the trafficking count, 8 months on the possession count and 8 months on the summary offence. There having been no order for cumulation, the total effective sentence was, thus, 1 year 8 months and his Honour ordered that 12 months of the sentence be served cumulatively upon any sentence that the applicant was then serving. His Honour ordered that the pistol be forfeited to the Crown. His Honour was told that, at the time of sentence, the applicant was in gaol serving a sentence which had been imposed in 1995 of 6 years with a minimum of 4 years for the offence of conspiracy to murder. The learned judge did not fix any global non-parole period.

5. By notice dated 31 May 1996 the applicant applied for leave to appeal against sentence.

6. There were five grounds of the application. Ground 5 was that the sentence was manifestly excessive whilst the other four grounds alleged specific sentencing errors. In the event, Mr. Tehan, who appeared with Mr. Holdenson for the applicant, did not advance any significant argument in support of ground 4 (failure to fix a non- parole period) or ground B.

7. Grounds 1, 2 and 3 were as follows: "1. The learned sentencing judge erred in failing to place any weight upon the submission of the respondent that the sentences be wholly concurrent with the sentence the applicant was presently undergoing. 2. The learned sentencing judge erred in finding that the possession of a firearm by the applicant was for the purpose of him protecting his drug trafficking business when there was no evidence to support such a finding. 3. The learned sentencing judge erred in failing to place sufficient weight upon: (a) the applicant's plea of guilty; (b) the delay between the commission of the offence and the date of the sentence." 8. Mr. Tehan informed the Court that the gravamen of his complaint in respect of the sentence was the failure by his Honour to make the whole of it concurrent with the sentence which the applicant was undergoing. He contended that such was the appropriate course for his Honour to have taken, not only because the Crown had not demurred to such a course, but also because it was primarily the errors identified in grounds 2 and 3 which had led his Honour to adopt the approach of partial cumulation.

9. Before this Court, Mr. Tehan first addressed the issues raised by ground 2. Because of the significance of those issues, we, too, will deal with that ground first.

10. The application was originally due to be heard on 18 September 1996. The Court indicated to the parties that this ground appeared to raise the question of the standard of proof which should be applied in the resolution of disputed sentencing issues, a matter in respect of which differing views had been expressed by the Court of Criminal Appeal in R. v. Chamberlain-1- and by two members of the Court of Appeal in R. v. Ali.-2-

11. With the consent of the parties, the matter was adjourned out of the list to enable a Court of five judges to be convened so as to enable the matter of disputed sentencing issues to be considered further.

12. The remarks made by the learned sentencing judge, in respect of which this issue is said to arise, related to the judge's view of the applicant's criminality in respect of the trafficking count. His Honour referred to the circumstances in which the police had located, in the applicant's car, what he described as a "drug dealer's kit" including the loaded .25 calibre pistol, the quantity of drugs previously referred to, scales, cash and plastic bags. His Honour noted that the applicant was not a drug user and that he was motivated apparently by greed, but that there were indications that, since his arrest, he had involved himself in assisting in the rehabilitation of other drug offenders in prison. His Honour also noted that, although the applicant had a criminal history which included convictions for many serious offences, they did not include convictions for drug- related offences. When dealing with a submission on behalf of the applicant that any sentence imposed should be made concurrent with the sentence which the applicant was presently serving, the learned judge said: "While I am persuaded that partial concurrency is called for, I am of the view that the aggravating factors in this case call for a degree of accumulation of sentences. In my view the amount of amphetamine involved.... the presence of the pistol which gives some indication of the lengths to which you were prepared to go to protect your business and your sole motivation of greed, all point toward condign punishment." 13. Mr. Tehan submitted that these remarks made it clear that the learned sentencing judge, in imposing a sentence on count 1, was treating the possession of the firearm as an aggravating factor, warranting a more severe penalty than otherwise would have been imposed. In so doing, Mr. Tehan argued, his Honour had acted contrary to fundamental sentencing principles which required a sentencing judge to be satisfied beyond reasonable doubt in respect of facts used to aggravate the sentence. It was Mr. Tehan's contention that this principle applies whether or not there is a dispute between the Crown and the accused in respect of the circumstances of aggravation. In this case, it was submitted, his Honour had clearly misapplied or ignored this fundamental principle because there was insufficient material before him upon which he could have been satisfied beyond reasonable doubt of the aggravating circumstance upon which he relied. In developing his submissions in respect of this matter, Mr. Tehan contended that because sentencing is such an integral part of the criminal process, this Court should hold that the onus and standard of proof which is borne by the Crown in establishing an accused person's guilt continues to bind the Crown in the sentencing process to the point where the Crown has the burden of satisfying the judge beyond reasonable doubt of the basis upon which he or she ultimately imposes a sentence on the prisoner.

14. In the absence of a statutory mandate, there was no room in the sentencing process, so Mr. Tehan argued, for any burden based on any standard of proof to be cast upon the offender. If the offender wished to rely upon circumstances of mitigation, he or she bore only an evidential burden, said Mr. Tehan, to produce credible material supporting such circumstances, which the Crown then had the ultimate burden of displacing on the criminal standard.

15. These submissions, if accepted, would carry principles of sentencing in this State to an entirely new plane - indeed a long way further than the Courts in Chamberlain or Ali have been prepared to go. Accordingly, we have heard full argument upon the matter in order that differences of view, which appear to exist in this State, as to the judge's task with regard to the finding of facts in the sentencing process can be resolved.

16. In Chamberlain-3- the Full Court considered the principles to be applied by a sentencing judge in making findings of fact for the purpose of imposing sentence. The Court held that "the degree of persuasion required will vary with the nature and consequence of the fact or facts in question".-4- The Court noted that; "The basal requirement of the criminal law is that each and every element of the offence charged should be proved beyond reasonable doubt in order to justify a conviction. The requirement does not mean that every fact alleged by the Crown must be proved beyond a reasonable doubt. One piece of evidence may be open to doubt but when it is coupled with other pieces of evidence, each of which may itself be open to doubt, persuasion beyond a reasonable doubt of the ingredient of the offence may result. It follows that when forming his own view of the facts for the purpose of passing sentence a trial judge cannot be required to be satisfied beyond reasonable doubt of every fact which he considers relevant. To require a judge to be satisfied beyond reasonable doubt of every relevant fact might lead in some cases to quite undue weight being given to self serving statements offered by an accused during interrogation or evidence. Moreover, a judge may have to sentence an accused where he does not personally agree with the verdict of the jury. on the other hand, to allow the finding of a fact which is critical to the determination of the sentence to be imposed upon a basis that admits of the existence of a reasonable doubt about the existence of that fact would plainly be unfair."-5- 17. The Court then said that in considering what degree of persuasion should be adopted in respect of any particular fact much guidance was to be derived from the well known judgment of Dixon J in Briginshaw v. Briainshaw.-6-

18. In Anderson v. The Queen-7- Deane, Toohey and Gaudron JJ said: "If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt."-8- 19. The other two members of the Court (Brennan and Dawson JJ) noted that it was the practice in South Australia for the prosecution on sentence to carry the onus of proving, beyond reasonable doubt, contested facts unfavourable to an offender which have not been established by the verdict or the plea,-9- but went on to say that they need not decide whether that practice was correct in point of law "in respect of facts not amounting to circumstances of aggravation which increase the liability to punishment."-10- They also noted that while the approach in South Australia had been followed in New South Wales, Tasmania, the Australian Capital Territory and perhaps Western Australia, a different view had been taken in Victoria and Queensland.

20. There is at least a question whether what was said by the Court in Anderson should be taken as binding us to hold that the Crown bears the onus of proving alleged, but disputed, factual circumstances that aggravate the offence and must do so beyond reasonable doubt. Before we deal with that matter, we should refer to the decision of this Court in R. v. Ali.-11- Two members of the Court who decided that case expressed the view that in the making of findings of fact for the purposes of sentencing the distinction to be drawn is that between circumstances of the offence and circumstances of the offender. In their Honours' view, the Crown bears the onus of establishing, beyond reasonable doubt, the circumstances of the offence whereas it is for the offender to establish, on the balance of probabilities, those circumstances that are described as "circumstances of the offender. As their Honours acknowledge, the views which they expressed were obiter, and they did not purport to overrule the decisions of the Full Court in Chamberlain's Case-12- or R v. Hoppner.-13- Despite the fact that those views departed from earlier decisions of the Full Court, it is not surprising that the views expressed in Ali's Case have been taken up and applied by some sentencing judges.

21. In Hoppner, the relevant distinction was treated as that between aggravating and mitigating circumstances (the mitigating circumstances there relied on being on any view part of the circumstances of the offence). The Full Court held-14- that the offender had to prove the existence of the mitigating circumstance on the balance of probabilities. Ali substitutes for the distinction between aggravating and mitigating circumstances a different distinction - that between the circumstances of the offence and the circumstances of the offender. The conclusion-15- is that "disputed sentencing issues" fall to be established by the Crown beyond reasonable doubt if they are circumstances of the offence, and fall to be established by the prisoner on the balance of probabilities if they are circumstances of the offender; no distinction is in terms drawn between circumstances (whether of the offence or of the offender) which are, or may be said to be, aggravating factors and those which are, or may be said to be, mitigating factors. Yet the proposition-16- is not unqualified. For as regards the circumstances of the offence, AU says that the Crown does not in all cases have to prove the version of the facts on which it relies and to disprove any version raised by the prisoner,-17- in that some issues will arise only if there is evidentiary material sufficient to raise them. The analogy is given of self-defence and provocation on trials for murder. The practical effect of the qualification so recognised is not clear. No doubt one could by analogy argue, for example, that in sentencing the Crown does not have to disprove provocation as a mitigating circumstance unless there is something in the material to suggest it. But what of other circumstances of the offence, like "duress" in the lay sense raised in relation to a drug offence,-18- or consent raised in relation to buggery,-19- or belief that a disqualification had expired,-20- or behaviour of the victim as a factor contributing to the commission of the offence, or motive, especially where the prisoner claims to have been relatively well intentioned? The difficulty, in our view, is that examples given in relation to trials (such as self defence and provocation in cases of murder) depend upon the definition of the crime, whereas it cannot be suggested in relation to sentencing that the definition of the offence provides the answer by showing in which cases the evidential burden arises.

22. As to the circumstances of the offender, it is said, in Ali, that "there are exceptions"-21- to the rule that these must be proved by the offender, and prior convictions are given as an example. The scope of the exception is not clear, nor is the principle by reference to which it is to be allowed. The existence of exceptions is explained by saying that "'circumstances of the offender' is but a phrase intended to capture the distinction",-22- but nothing is said to explain what the distinction is, if it is not sufficiently drawn by the use of the phrases "circumstances of the offender" and "circumstances of the offence". Why are prior convictions an exception? Is it because they are an aggravating factor? In our view, difficulties will arise as to who bears the onus in relation to the following circumstances of the offender: 1. Subsequent convictions; 2. The way in which the offender has responded to earlier sentencing leniency (and this response may have been good, bad or indifferent); 3. The fact that at the time of the subject offence the offender was on bail or parole or the subject of a community based order or an order suspending a sentence of imprisonment; 4. Character as evidenced otherwise than by convictions (which character may be good, bad or indifferent; to take but one example, employment record may be extremely good, or lamentable, or not bad); 5. Family background (which may be unremarkable, or extremely disadvantaged, or on the other hand such as to show the squandering of advantages by an overindulged young person, culminating in a series of mean offences of dishonesty by one who was very well off financially); 6. The holding of a position of trust (which may be relied on as evidence of good character or, if the offence is said to be in breach of that trust, as an aggravating circumstance). 23. If the answer is that a circumstance of the offender must be proved by the Crown if it is said in the particular case to constitute an adverse circumstance, there seems to be little point in seeking to abandon the distinction between aggravating and mitigating circumstances in favour of a distinction between circumstances of the offence and those of the offender.

24. As regards the distinction between circumstances of the offence and those of the offender, it must be so that they frequently overlap. Circumstances of the offender - like drug addiction or alcoholism or personality disorder or grossly disadvantaged background - may be said to have in sentencing an intrinsic relevance, as it were, in the sense that they point towards leniency or the suitability of a particular sentence in a given case. But they often, if not usually, have an additional relevance, in that it is suggested that they have contributed to the offence, in which case a question of causation arises and the matter becomes one of the "circumstances of the offence". For example the question will arise whether the drug offence was motivated by the need to feed an addiction, or whether the prisoner's condition is such that he or she is a danger to the community. The "circumstances of the offender" in such cases may be something which the prisoner wishes to embrace or on the other hand to disavow. So, one offender may argue that it is in her favour that she trafficked in drugs only to feed her addiction while another may deny that his personality is such as to make him a danger to the community. In the case of the supposed drug addict, it would not be surprising if proof of the addiction, if not also of the causal connection, was said to rest on the offender. But could it be said that the personality of the second offender, being a "circumstance of the offender" was something which the Crown was not required to establish where the Crown's submission was that the offender was a danger to the community? Yet Ali does not found itself on the distinction between aggravating and mitigating circumstances.

25. We do not accept that the distinction sought to he drawn in Ali between the circumstances of the offender and those of the offence should be adopted as a basis for regulating proof of facts which bear upon sentence.

26. First, for the reasons which we have already given, it is not clear how the two kinds of circumstance are to be distinguished. The suggestion in Ali that the "detailed application (of the distinction) will have to be worked out on a case by case basis, a task that will fall both to sentencing judges and to this Court"-23- seems to us to be unsatisfactory.

27. Secondly, recent experience in this Court shows that the adoption of the distinction proposed in Ali has sometimes led to confusion and the undue lengthening of sentencing proceedings.

28. The distinction between circumstances of the offence and the circumstances of the offender is a distinction which does not identify sufficiently the kind of problem that has to be solved and, in particular, does not focus upon the use that is to be made of findings of fact in sentencing or upon the way in which disputes about such facts arise.

29. Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single "right" answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the "instinctive synthesis"-24- which takes account of the various purposes for which sentences are imposed-25- - just punishment, deterrence, rehabilitation, denunciation, protection of the community - and which pays due regard to principles of totality, parity, parsimony and the like. To divide facts between those that constitute the circumstances of the offence and those that constitute the circumstances of the offender assumes that all of the facts that are relevant to the question of sentence can be classified in this way. In our opinion, no such a priori classification is possible.

30. Imposing a just sentence requires the judge to consider what the offender did and why, as well as who the offender is. In cases of indictable crime, the judge will ordinarily be informed of what the offender did from the evidence given at the trial or from the material at the committal. If there is a plea of guilty, the plea will stand as an admission of the elements of the offence charged, but, of course, of no more than those elements. Sometimes, the Crown and the accused will agree upon a statement of facts that is to be used for the purposes of the plea. If a verdict of guilty has been returned after trial the facts implied by the verdict will usually be clear. In such cases, there will be no difficulty in identifying what the offender did. The facts implicit in the verdict or plea of guilty cannot be controverted. The judge must sentence according to those facts, whatever views he or she may hold about the verdict.-26- Similarly the judge must not sentence for an offence with which the accused has not been charged-27-. The difficulties arise in cases where the factual implications of the plea or verdict are not clear-28- or one or other of the parties wishes to rely on a fact that is not established in one of the ways described earlier and is disputed by the other party or the judge intends to act on a view of the matter that is not accepted by both parties.

31. On the hearing of this appeal it was submitted that the question presented in such cases is "which party bears what onus in relation to sentencing facts or issues?". As we have said, counsel for the applicant submitted that the Crown bears the onus of proving all matters affecting sentence beyond reasonable doubt. The Director submitted that matters in aggravation of the offence should be proved by the Crown and that some, but not all, of those facts should be proved beyond reasonable doubt; he submitted that matters in mitigation of punishment should be established by the offender on the balance of probabilities.

32. There are several points to be made about this formulation of the question and the answers that were proposed on behalf of the parties.

33. First, when a judge comes to sentence an offender, there is no general issue joined between the Crown and the offender as there is on the trial of that offender. It is not for the Crown to undertake some general burden of proving all facts relevant to sentence. The offender has been found guilty of, or has pleaded guilty to, an offence. The elements of the offence are thereby proved or admitted. The judge is called on to sentence the offender for that crime. The offender may, and commonly will, make a plea in mitigation. There can be no question of either party's undertaking any onus of proving any further fact unless and until it is suggested that there are matters beyond the bare elements of the offence (elements that are established by the verdict or plea) which the judge should take into account in passing sentence.

34. To speak of one party's undertaking an onus of proving that further fact may distract attention from the process that is to be undertaken: the judge is to find those facts which he or she considers bear upon the sentence to be passed. Some of those facts will be facts that the judge will take into account in a way that is adverse to the interests of the offender; some will be taken into account in the offender's favour. If there is nothing in the material before the judge that raises a particular matter for consideration it will not be taken into account. It follows that in most cases it will be one or other of the parties which will seek, in the course of the plea, to raise particular issues for consideration by the judge. It will then usually be apparent whether the asserted fact is controverted by the other party or (as may sometimes happen) is not accepted by the judge. There may also be cases in which the parties do not raise a matter as one affecting sentence but the matter is one which the judge thinks relevant. The judge may invite the attention of the parties to the matter before making use of it and it will then become apparent whether the parties embrace or reject it.

35. If there is a dispute about a particular matter (whether because the parties are in dispute or because the judge is not prepared to act on the assertion that has been made) what is important is what use the judge will make of the matter - will it be adverse to the offender or in the offender's favour? - and what the degree of satisfaction it is that the judge must have before he or she can use that matter in determining an appropriate sentence. Neither of these questions requires consideration of which party bears the onus of proving the matter. The question which party bears an onus of proof may be one that arises only where there is some joinder of issue between parties to a suit and, as we have said, there is no general joinder of issue, analogous to the joinder of issue on trial, in relation to sentence. It is not for the Crown to prove what is a proper sentence for the offender or to prove the facts that should be taken to account in reaching such a sentence any more than it is for the offender to prove either of those matters; it is for the judge to find the facts which he or she considers affect the exercise of the sentencing discretion and then determine an appropriate sentence.

36. That may be reason enough not to examine the present issues in terms of which party bears an onus. Whether or not that is so, discussion of which party bears an onus will, in our view, obscure rather than illuminate the process. To say, as did counsel for the applicant, that the Crown bears the onus of proving all facts relevant to sentence assumes that there is some general joining of issue between Crown and offender; there is not.

37. We, therefore, do not think it appropriate or useful to ask which party bears an onus. The question is, what is the standard of proof that is to be met and on what matters.

38. Before what was said in the joint judgment in AU, no appellate court in this State had accepted that as regards the burden of proving facts for sentencing purposes the distinction to be drawn was between the circumstance of the offence and those of the offender. The Full Court had for many years accepted that the distinction to be drawn was between aggravating and mitigating circumstances and that it was for the prisoner to prove facts in mitigation, whether they were circumstances of the offence or circumstances of the offender. So in R. v. King-29- Young CJ, Lush and Brooking JJ were concerned with an applicant who had on the plea led evidence of mitigating personal circumstances but no evidence of mitigating circumstances of the offence, which explains the way in which the following passage-30- is cast: "A Court must sentence a man upon the case made out by the Crown in evidence or appearing from the depositions, but it none the less looks to him to put forward material in mitigation of the offence. The applicant's failure to prove on the hearing of the plea any mitigating circumstances of the offence, as opposed to mitigating factors personal to himself, is a relevant matter. In the case of drug offences, very often only the offender will be in a position to prove the true extent of his involvement in commercial dealing. The extent of his participation will hardly ever appear from overt acts which the Crown will be able to prove. If the offender does not give evidence, he can hardly complain if the Court declines to make inferences in his favour." 39. In R. v. Hasanovic,-31- Lush J speaking in effect for the Court, said: "It is for the sentencing judge to take such view of the evidence relating to the commission of the crime as he thinks appropriate. But if he takes a view which is adverse to the offender in the sense that it is a view which leads to more severe punishment than alternative views would lead to, then at least that adverse view must be capable of being shown to be more probable than the alternative views upon the material placed before the judge." 40. This passage was cited by McGarvie J, with whose judgment Young CJ agreed, in R. v. Hoppner.-32- The judgment of McGarvie J plainly proceeds upon the basis that the relevant distinction is between aggravating and mitigating circumstances. Again, the judgment, like the joint judgment in King recognises that it is for the offender to prove mitigating circumstances, whether "circumstances of the offence" or "circumstances peculiar to the applicant".-33-

41. The judgment of Lush J in R. v. Halden,-34- with which Fullagar J concurred, treated the burden imposed upon the Crown as concerned with facts relied on by the Crown which tended to aggravate the offence (facts which Lush J described as "adverse facts").

42. Even if the High Court's decision in Anderson does not compel the result (and it may do so) we consider that principle requires the conclusion that if the circumstance is one that the judge considers aggravates the offence, the judge must be satisfied of that fact beyond reasonable doubt. Despite the caveat entered by Brennan and Dawson JJ in Anderson-35- we do not consider that that conclusion is at odds with what was said by the High Court in R. v. Tait and Bartley.-36- What the Court in Chamberlain referred to as "(t)he basal requirement of the criminal law"-37- entails the conclusion to which we have come. We would not confine the proposition to circumstances which "aggravate the offence" but would extend it to any circumstance which the judge proposes to take into account adversely to the interests of the accused - "adversely" in the sense that it is "likely to result in a more severe sentence than would otherwise be the case".-38- Accordingly, bearing in mind that the sentencing decision is commonly no less important to the offender than the decision about guilt or innocence, we are of the view that it follows from that same "basal requirement" that the judge 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. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

43. We do not accept the submission on behalf of the applicant that the Crown must disprove, beyond reasonable doubt, matters which the judge proposes or is invited to take into account in favour of the offender.

44. First, we do not accept that principle requires such a conclusion. It is a conclusion that assumes that because the sentencing process is no more than a continuation of the trial the same onus and standard of proof rests upon the Crown. As we have said earlier, even if, in some sense, it can be said that the sentencing process is but the continuation of the trial process,-39- we do not accept that the Crown bears any general onus of proving the facts that form the basis for sentencing. The onus which the Crown has at trial, is discharged by the proof (or admission) of the elements of the offence.

45. Secondly, to require the Crown to disprove factors which go in mitigation leads to unacceptable, if not absurd, results. If it is alleged that the offender committed the crime because he or she was a drug addict and it is for the Crown to prove, beyond reasonable doubt, that that is not so, what use is the judge to make of the conclusion if, not being persuaded that the offender probably was a drug addict he or she is, nevertheless, not persuaded that the matter is free from reasonable doubt? Is the judge then to sentence the offender on the basis that the assertion (of which the judge is unpersuaded on the balance of probabilities) is true? That is, is the judge to sentence the offender on the basis of some assumed "facts" of which the judge is not persuaded? If there are two offenders, one of whom the judge has no doubt was a drug addict and the other of whom the judge believes probably was not an addict but cannot say beyond reasonable doubt was not, are they to be treated alike, as if they are both found to be addicts?

46. It is no answer to say, as was contended by counsel for the applicant, that an analogy can be drawn with the case of a judge sentencing an offender for manslaughter where the offender was acquitted of murder and the only issue at trial was whether the offender was provoked. In such a case, so the argument went, the judge is required to treat the jury as having found that there was provocation even though the jury may have acquitted the offender of murder only because it was not persuaded that the Crown had proved that the killing was not provoked. Leaving aside the difficulties with the analogy in cases where there is more than one issue at trial-40- the supposed analogy breaks down because it is trite that for the purposes of passing sentence the judge must accept the verdict of the jury. In the example given the judge may not sentence the offender on the basis that the killing was unprovoked for to do so would depart from the jury's verdict and treat the offender as guilty of murder.

47. Further, we do not accept the Director's contention that there is either some sliding scale of standard of proof of disputed facts that the judge proposes to take into account adverse to the interests of the offender or that only some of those facts (the "critical" or "important" facts) must be proved beyond reasonable doubt, it being sufficient if the judge is satisfied of other matters on the balance of probabilities. As is apparent from the passages we have quoted, there are statements in Chamberlain which can be taken as suggesting a sliding scale of persuasion or as suggesting that a judge must be satisfied beyond reasonable doubt of only some matters - matters "critical to sentence". We do not think it profitable to stay to examine whether Chamberlain does or does not stand for such propositions.

48. Having regard to the matters of principle we have mentioned and to the numerous authorities both in this country and elsewhere to which we were referred-41- we consider that the principles to be applied are those which we have earlier identified, namely that the judge 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 but if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

49. It may very well be that the descriptions of aggravating and mitigating circumstances will be useful shorthand expressions to refer to the distinction we draw. They are, however, no more than shorthand expressions. It would not be right to argue from the tag that is applied to the category of circumstances to some conclusion about whether a particular circumstance is or is not in one group rather than the other. Factors cannot be characterised as always aggravating or always mitigating. For example, the taking of drugs or alcohol will sometimes be put forward as a mitigating factor but it may, in a given case, be held to aggravate the crime. Good standing in the community will usually tend to mitigate but may tend to aggravate if it has been misused. one must always ask what the tendency of the circumstance is in the particular case under consideration. No doubt there will he cases in which the same facts can be seized on by both the Crown and the accused and described by one as an aggravating circumstance and the other as a mitigating circumstance. "Aggravating" and "mitigating" must be understood in a wide sense, and without, for example, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (for example, the use of a weapon) and on the other hand of a prior or subsequent conviction.

50. The test is not what tag can or should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice.

51. We have spoken of "proof". ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence. But that is to stop well short of adopting the procedure by way of so-called "Newton hearing"-42- that has been adopted in England and Wales. The procedures for hearing pleas in this State have not been shown to be wanting, and while we readily accept that "Nothing gives a bigger sense of injustice to a convicted man than false statements being made about him after the verdict"-43- we do not accept that present procedures are deficient in this respect.

52. We have spoken of disputed "facts" As was pointed out in Ali-44- there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just,as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order for the jury to conclude that the offence is proved,-45- so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard - not each of the individual facts which is said to bear upon the issue.

53. Although the principles that we have set out are not identical with those established in Chamberlain, the cases in which their application will be significant to the outcome are likely to be few. In most cases there is little real dispute about the facts that are to be taken into account on sentencing, or if there is a dispute, it is readily resolved.

54. Sir John Barry said in his lectures on "The Courts and Criminal Punishment": "Dr Leon Radzinowicz has rightly observed that the criminal law is fundamentally but a social instrument wielded under the authority of the State to secure collective and individual protection against crime'. It is a social instrument whose character is to be determined by its practical purposes and its practical limitations. It has to employ methods which are, in important respects, rough and ready, and in the nature of things it cannot take fully into account mere individual limitations and the philosophical considerations involved in the theory of moral, as distinct from legal, responsibility. It must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. it must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime."-46- 55. We do not intend what we have said to introduce "excessive subtlety and refinement" to the task of sentencing. Although sentencing has received much attention in the courts and from those who comment on the law since Sir John Barry delivered his lectures, it is still the case that it, like other aspects of the criminal law, must be administered in such a way that it can be understood by ordinary citizens and be regarded by them as conforming with generally accepted standards of what is fair and just; "it must be operated as a going concern". That is yet another reason why it is important to resolve the issue that we are now considering in a way that is simple and is readily understood and applied. We believe that the distinction between matters according to whether they are to be taken into account for or against the offender meets that test.

56. It also follows from the considerations we have just mentioned that we are not to be taken as suggesting that in a case in which a judge does have to make a finding on a matter which the parties have not expressly or implicitly accepted it will be necessary for the judge to do more than state in substance that he or she is satisfied of the relevant fact. Nor are we to be taken as suggesting that some particular verbal formula should be adopted by the judge. Of course the judge will have to bear in mind, and apply, the principles which we have set out, but we are not to be taken as saying that the bare fact that the judge does not expressly refer to the relevant standard of proof in the course of sentencing remarks is itself evidence of sentencing error.

57. We return to this application. In the course of the plea, counsel for the applicant said, at one point, that "the gun, really, is in some senses related to that situation which he found himself in" (a reference to a contention that the applicant may have been holding the drugs for someone else) but later, when asked by the judge whether it was suggested "that he had the gun to protect this cache of drugs", said that he did not understand the Crown to put the case "in that way". No further reference was made in the course of the plea to the possession of the pistol.

58. We accept that, in those circumstances, it was not open to his Honour to find, beyond reasonable doubt, that the applicant was in possession of the firearm to protect the drugs as opposed to having it for what counsel had referred to as "general self-protection". As we noted earlier, the judge did say in his sentencing remarks that the "presence of the pistol ... (gave) some indication of the lengths to which you were prepared to go to protect your business" and that that, with other matters, pointed towards condign punishment. Since there was a flawed basis for the sentence on this count (the trafficking count) that sentence must be set aside. In lieu, we would impose a sentence of 15 months, imprisonment.

59. In support of ground 1, counsel for the applicant submitted that the learned judge was in error in failing to place any weight upon what was contended to be "a submission" which had been made on behalf of the Crown that the sentences imposed by his Honour should be wholly concurrent with the sentences then being served by the applicant.

60. In fact the prosecutor had said: "I can indicate for the record that the Crown's position is that we do not resist the submission in respect of total concurrency." 61. Mr. Tehan contended that the Crown's attitude was a recognition that the applicant had suffered the consequence of the long delay between apprehension and plea. (To that extent his submissions on ground I overlapped his submissions on ground 3.)

62. Although the attitude expressed by the Crown should be a matter to be considered seriously by the judge on sentence, it cannot, as Mr. Tehan correctly conceded, be binding upon him. The learned judge was entitled to take, in our opinion, the very serious view of the matter which he did take. It was clear that the applicant had in his possession a very large quantity of a drug, the damaging nature of which has been frequently commented on by this Court. Notwithstanding that the drug was of "street level" purity, that fact cannot deprive the offence of the features which the learned judge ascribed to it. We would have thought, with respect, that the learned judge would have been failing in his duty, given his finding that the applicant was motivated solely by greed, had he not imposed a sentence which provided for some significant cumulation of penalty upon the sentence then being served.

63. Likewise, we do not accept the submissions made on behalf of the applicant that the long delay between apprehension and trial should have led the learned judge to order total concurrency. It was accepted during argument that much of that delay was as a consequence of a request by or on behalf of the applicant to delay hearing of the matters pending resolution of the conspiracy to murder charge which he was then facing.

64. Although, as Mr. Tehan pointed out, the Crown recognised the difficult position into which the applicant had been thrust by the pendency of the two matters, we think that the sentencing judge was entitled to give reduced weight to the delay having regard to the reasons for it. In any event, it is clear from his Honour's reasons for sentence, in which he referred to the matter specifically, that he was conscious of the impact of delay on the applicant.

66. As we have said, a different sentence should be passed in respect of count 1, but, in our view, the sentencing judge produced an effective sentence which appropriately reflected the total criminality of the applicant's offences. Accordingly, we would produce the same result by ordering that 5 months of the sentence imposed on the sentence upon the firearms offence be served cumulatively upon the sentence on count 1.

67. We would grant the application for leave to appeal, allow the appeal and set aside the sentence imposed on the trafficking count (count 1) and, in lieu sentence the applicant on count 1 to 15 months, imprisonment and order that 5 months of the sentence imposed on the summary offence be served cumulatively upon the sentence imposed on count 1. Otherwise we would confirm the sentences passed below and confirm the order that 12 months of the sentence be served cumulatively upon any sentence that the applicant is now serving.

-1- [1983] VicRp 110; (1983) 2 VR 511 -2- [1996] VicRp 56; (1996) 2 VR 49 -3- [1983] VicRp 110; (1983) 2 VR 511. -4- [1983] VicRp 110; (1983) 2 VR 511 at 514. -5- [1983] VicRp 110; (1983) 2 VR 511 at 514; emphasis added. -6- [1938] HCA 34; (1938) 60 CLR 336 at 360-3. -7- [1993] HCA 59; (1993) 177 CLR 520. -8- [1993] HCA 59; (1993) 177 CLR 520 at 536; emphasis added. Reference was made in support of these propositions to R. v. capobianco (1978) 20 ACTR 29 at 30-31; R. v. O'Neill (1979) 2 NSWLR at 588 and 590; Law V. Deed (1970) SASR at 378; R v. McGrath and Casey (1983) 5 Crim App Rep (S) 460 at 463. It was said that these should be compared with Chamberlain [1983] VicRp 110; (1983) 2 VR 511 at 514-515; R v. Welsh (1983) 1 QdR 592 at 594-595; R v. Boney; ex p. Attorney General (1986) 1 QdR 190 at 192-193, 208-209 and R. v. J (Jnr) (1989) 41 A.Crim R. 466 at 469-470, 476-477. -9- [1993] HCA 59; (1993) 177 CLR 520 at 526. -10- [1993] HCA 59; (1993) 177 CLR 520 at 526; emphasis added. -11- [1996] VicRp 56; (1996) 2 VR 49. -12- Supra. -13- Unreported, 7 October 1980. -14- Page 7. -15- [1996] VicRp 56; (1996) 2 VR 49 at 60-61. -16- [1996] VicRp 56; (1996) 2 VR 49 at 60. -17- [1996] VicRp 56; (1996) 2 VR 49 at 60-61. -18- R. v. Ahmed (1984) 80 Cr.App.Rep. 295. -19- R. v. Newton (1983) 77 Cr.App.R 13. -20- Law v. Deed (1970) SASR 374. -21- [1996] VicRp 56; (1996) 2 VR 49 at 60. -22- [1996] VicRp 56; (1996) 2 VR 49 at 60. -23- [1996] VicRp 56; (1996) 2 VR 49 at 60. -24- R v. Young [1990] VicRp 84; (1990) VR 951. -25- Sentencing Act 1991 s.5. -26- R. v. Webb [1971] VicRp 16; (1971) VR 147; R. v. Boyd [1975] VicRp 16; (1975) VR 168. -27- R. v. De Simoni [1981] HCA 31; (1981) 147 CLR 383. -28- The verdict may be ambiguous - e.g. was a verdict of manslaughter returned because the jury thought that there might be provocation or because the jury was not satisfied that the accused had the requisite intent? There may be insufficient facts implied in the verdict - e.g. a conviction for a strict liability offence carries no implication about the accused's intent. The presentment may charge offences in such a way as not to reveal the extent of the criminality involved - e.g. a charge that between certain dates the accused defrauded the Commonwealth by wrongfully receiving social security payments says nothing of the amount involved or of the number of payments received. -29- Unreported, Full court, 6 October 1978. -30- King, at p.13. -31- unreported, Full Court, 11 April 1980 at p.6. -32- Unreported, Full Court, 7 October 1980 at p.5. -33- Hoppner, at p.6. -34- (1983) 9 A.Crim.R. 30. -35- [1993] HCA 59; (1993) 177 CLR 520 at 526 Note 25. -36- (1979) 46 FLR 386 at 396; 24 ALR 473 at 483. -37- [1983] VicRp 110; (1983) 2 VR 511 at 514. -38- Langridge v. The Queen Sup.Ct of W.A. Unreported, 17 May 1996 per Kennedy J at p. 37. -39- Cf. R. v. Symons [1981] VicRp 33; (1981) VR 297 at 308 and 312-313 per Tadgell J. -40- The judge in such a case is bound to form a view of the facts of the case for the purposes of the sentence and is not bound to proceed on the basis that all of the issues at trial are to be taken as having been resolved in the offender's favour. -41- Among the authorities to which we were referred were: N.S.W. R. v. O'Neill (1979) 2 NSWLR 582; R. v. Martin (1981) 2 NSWLR 640; R. v. Blanchard CCA Unreported, 10 September 1991; R. v. Savvas (No.2) (1991) 58 A.Crim.R.174; Chow v. DPP (1992) 28 NSWLR 593; W.A. Langridge v. The Queen Unreported, 17 May 1996; Salisbury v. The Queen (1994) 12 WAR 452; R. v. Alois (1983) WAR 133; S.A. Law v. Deed (1970) SASR 374; Qld. R. v. Nardozzi (1995) 2 QdR 87; R. v. Tobson (1989) 2 QdR 464; (1989) 41 A.Crim.R. 466 sub nom, R. v. J (Jnr) Tas. R. V. Turnbull [1994] TASSC 131; (1994) 4 Tas.R. 216.; U.K. R. v. Guppy and Marsh (1995) 16 Cr.App.R. (S) 25; R. V. Palmer (1993) 14 Cr.App.R. (S) 123; Canada R. v. Gardiner (1982) 2 SCR 368; (1982) 68 CCC (2d) 477; R. v. Holt (1983) 4 CCC(3d) 32. Reference was also made to Fox and O'Brien, "Fact Finding for Sentencers" [1975] MelbULawRw 12; (1975) 10 MULR 163. See also Thomas "Establishing a Factual Basis for sentencing" (1970) Crim.L.R. 80; Lowenthal "Some Issues in Fact Finding for Sentences" (1980) 11 UQLJ 145; Davies, "Passing Sentence on Facts" (1979) New Law Jnl. 824; Wasik, "Rules of Evidence in the Sentencing Process" (1985) Current Legal Problems 187. -42- R. v. Newton (1983) 77 Cr.App.R 13; R. v. Gandy (1990) Crim LR 346. -43- R v. Sargeant (1974) 60 Cr.App.R.74 per Lawton LJ. -44- [1996] VicRp 56; (1996) 2 VR 49 at 60-61. -45- Shepherd v. The Queen [1990] HCA 56; (1990) 170 CLR 573. -46- 1969, at pp.14-15; emphasis added. Quoted in R. Williscroft [1975] VicRp 27; (1975) VR 292 at 300 per Adam and Crockett JJ.

68. The principal question raised by this application for leave to appeal against sentence concerns what are commonly called the burden and standard of proof for sentencing facts,-1- but in truth it is sentencing issues to which a standard of proof must be applied.-2- First, there must be an issue in the sense of a contest: there may be a dispute between the Crown and the prisoner or, as in the present case, the judge may differ from a view of the facts propounded or assumed by one or both of the parties. Secondly, it is an issue, in the sense of a topic going to sentence, that must be proved to the requisite standard. Accordingly, if there is a question whether trafficking was committed as part of a commercial operation, that must be proved beyond reasonable doubt, but there may be a large number of individual facts showing the nature of the operation. They do not all have to be proved beyond reasonable doubt.

69. The law is settled in this State that an appropriate sentence is arrived at by an "instinctive synthesis"-3- of the relevant factors.- 4- The facts must be found-5- before the process of instinctive synthesis begins, but it is only facts as to which there is an issue that present a problem. other facts will either be common ground or they will be uncontroversial and the judge will be satisfied of them from the evidence, depositions or other material properly before the court.-6-

70. It is common to speak of the Crown or the prisoner having to prove sentencing issues. Crockett AJA and I did so in R. v. Ali.-7- Deane, Toohey and Gaudron JJ used the same language in Anderson v. The Queen.-8- It is nevertheless important to remember what is happening. The prisoner has either been found guilty after a trial or has pleaded guilty. The judge is now informing himself or herself of the facts on which to pass sentence. Before the institution of Crown appeals, it was clearer than it is now that the judge was essentially conducting an inquiry and listening to what is, perhaps revealingly, called a "plea". There is a sense in which the hearing is accusatorial-9- but the hearing is not like a trial. Not only is there no issue joined between the Crown and the prisoner as to the sentence to be imposed, in the sense that the general issue is joined at a trial,-10- but the proceedings are of a much more informal characters-11-

71. The "golden thread"-12- is not severed by the scissors of conviction. The question is the extent, if any, to which it is frayed by considerations such as those to which I have just referred. All the members of the Court agree that circumstances of aggravation with respect to which there is an issue must be established beyond reasonable doubt and accordingly that R. v. Chamberlain-13- should be overruled. The President, Brooking and Hayne JJA and Southwell AJA consider that circumstances of mitigation must be established on the balance of probabilities. The reasons their Honours give for that conclusion, two of which I shall endeavour to restate in my own words, are not by any means unpersuasive.

72. First, the distinction between the circumstances of the offender and the circumstances of the offence, although it is time-honoured and useful for other purposes, does not adequately capture the distinction that has to be made in describing the requisite standard of proof. The criticism that a particular fact may be as much a circumstance of the offender as of the offence carries little weight, for obviously the rule relating to the circumstances of the offence would prevail."-14- It is the criticism that there are too many aggravating circumstances of the offender that leads me to accept that the distinction should be re-formulated. It is better, and more accurately, expressed as the distinction between contested circumstances of mitigation extraneous to the offence and other circumstances in respect of which there is an issue.-15- To that extent, the sustained attack in the joint judgment on one part of R. v. Ali-16- succeeds.-17-

73. Secondly, subject to two qualifications, the common law proceeds on the basis that something that is proved to the requisite standard is treated as certain.-18- The qualifications are past hypothetical facts and future predictions. -19- If the legal and evidentiary burdens go together both for circumstances of mitigation and for circumstances of aggravation, a disputed factor that is established to the requisite standard is treated as certain. If it is not so established, it is disregarded. By contrast, if circumstances of mitigation must be disproved beyond reasonable doubt, with the prisoner bearing only an evidentiary burden, it may appear that the judge is being required to treat as certain something in respect of which there may be no more than a reasonable possibility.-20- Indeed the judge may be satisfied, on the balance of probabilities, that the relevant circumstances of mitigation did not obtain. It is that consideration which leads their Honours to describe the position in England-21- and South Australia-22- as bordering on the absurd.

74. Mr. Tehan argued that the judge must be satisfied beyond reasonable doubt in respect of all sentencing issues, even extraneous circumstances of mitigation. I do not accept that submission,-23- or the view that it is too difficult to tell whether a circumstance of mitigation is, or is not, extraneous to the offence. If it had-24- a significant connection with the offence it was, ex hypothesi, not extraneous. The real alternative against which to test the view favoured by the other members of the Court is that the judge must be satisfied beyond reasonable doubt in respect of all sentencing issues except extraneous circumstances of mitigation.-25-, -26-

75. Both the evidentiary and the legal burdens-27- with respect to extraneous circumstances of mitigation lie on the prisoner.-28- The difference between the two views is of practical importance only with respect to mitigating circumstances that are not extraneous to the offence. The majority would say that, unless they are established on the balance of probabilities, the judge is to proceed on the basis that they did not obtain. Mr. Tehan's submission, suitably modified, would be that the prisoner bears an evidentiary burden but, if it is discharged, the relevant circumstances of mitigation must be assumed in his favour unless the contrary is established beyond reasonable doubt.-29-

76. I have given anxious consideration to the difference between the two views. The view that the prisoner must prove circumstances of mitigation has certain practical and intellectual attractions. In the end however I have concluded, with respect, that it is both legally and philosophically wrong. It is philosophically wrong because the last thing Australia or the other Western democracies need on the threshold of the 21st century is a retreat into authoritarianism. I do not use that word in a pejorative sense, but as a neutral description of a view of sentencing that says that a trial is concerned with guilt but sentencing is concerned with punishment. Both are concerned with punishment for the reasons so eloquently expressed by Sir James Fitzjames Stephen and Dickson J.-30-

77. The legal objection begins by meeting head-on the characterization of disproof of mitigating circumstances as requiring the judge to pretend that something is true when it is not. The same could be said of an aggravating factor that the judge thinks was probably present but which is not proved beyond reasonable doubt.-31- The view for which Mr. Tehan contends, modified to take account of extraneous circumstances of mitigation, means no more than that the judge is bound to take the most favourable view, both of the circumstances of the offender and of the offence, that is reasonably open on the material before the court.-32- To say otherwise is to draw an arbitrary distinction dependent on the elements of the offence, which are all too often statutory-33- and rarely if ever drafted mindful of the difference that the definition will make to sentencing an offender.-34-

78. In Langridge v- The Queen, Kennedy J said,-35- "So far as principle is concerned, as Dickson J said in R. v. Gardiner (supra), and as a number of commentators have observed, the facts which justify the sanction are no less important than the facts which justify the conviction, and both should be subject to the same standard of proof." If that is so, the principle cannot be confined to circumstances of aggravation. It must extend to circumstances of mitigation in respect of which the prisoner has discharged the evidentiary onus.-36-

79. I agree in the conclusions of the majority on the other grounds of appeal and in the orders that their Honours propose. It is implicit in their reasons that ground 3(a), as well as ground 3(b), is not made out. The learned judge referred to the applicant's plea of guilty three times in the course of the sentencing remarks. There is no reason to think that he nevertheless gave it insufficient weight. His Honour could not, however, be satisfied beyond reasonable doubt-37- that the applicant was in possession of the pistol to protect his drug-trafficking business as opposed to having it for what counsel had called "general self-protection". That error as to a sentencing issue re-opens the discretion and obliges us to consider the matter afresh. The appropriate course is to reduce the sentence for trafficking but to make part of the sentence for possessing a firearm as a prohibited person cumulative. There is no occasion to alter the total effective sentence.

80. In summary, in my opinion: 1. Questions relating to the standard of proof, and the evidentiary and legal burdens of proof, are important only in relation to sentencing issues as described in the first paragraph of this judgment. 2. Where there has been a jury trial, the sentence must be consistent with the verdict and any factual findings that are clearly implicit in it; but, where the verdict is consistent with more than one view of the facts, the judge must decide which view to adopt, for different jurors may have followed different chains of reasoning.-38- 3. Circumstances of mitigation extraneous to the offence,-39- in respect of which there is an issue, are to be established on the balance of probabilities. In the nature of the case, they will have to be established by the offender, who will often have to give evidence himself or herself in order to discharge that onus. 4. Subject to paragraphs 1, 2 and 3 above, the judge is to take the most favourable view, both of the circumstances of the offender and of the offence, that is reasonably open on the material before the court.-40- 5. In conventional language-41- that means that the judge must be satisfied beyond reasonable doubt before acting on a view of the facts adverse to the offender. It matters not whether the issue goes to circumstances of aggravation or mitigation, except that in the latter case the offender bears an evidentiary onus.-42-

-1- The authorities are surveyed in R. v. Turnbull [1994] TASSC 131; (1994) 4 Tas.R. 216; R. V. Salisbury (1994) 12 WAR 452; R. v. Ali [1996] VicRp 56; (1996) 2 VR 49; and Langridge v. The Queen (Western Australian Court of Criminal Appeal, unreported, 17th May 1996). One of the best articles is still Fox and O'Brien, "Fact-Finding for Sentencers" [1975] MelbULawRw 12; (1975) 10 MULR 163. -2- R. v. Ali [1996] VicRp 56; (1996) 2 VR 49 at pp.60-61; Langridge v. The Queen, above, per Kennedy J at p.37; joint judgment of Winneke, P., Brooking and Hayne JJA and Southwell AJA at p.24. -3- The requirement for an instinctive synthesis is primarily directed against mechanical or multi-tiered reasoning. it is not a charter for internal inconsistency. The result of the synthesis must be capable of being defended on appeal as both just and rational. -4- R. v. Young [1990] VicRp 84; (1990) VR 951; R. v. Nagy [1992] VicRp 45; (1992) 1 VR 637 at pp.638- 639 and 652. There may nevertheless be some factors that have to be taken into account separately, for example, where a judge takes into account a sentence imposed by another judge or magistrate and reduces a sentence that is otherwise perfectly appropriate in order to avoid engendering a justifiable sense of grievance. See and compare Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606 at pp.609-610, 613-614 and 623. -5- There are, or may well be, exceptions, but they do not bear on the thesis either of the joint judgment or this judgment. see, for example, R. v. Johnston (Court of Appeal, unreported, 30th August 1996) in my judgment at p.2 in relation to prevalence. -6- The judge must form a view of the facts beyond the bare bones of the elements of the offence in order to sentence at all, There is no point in saying that facts as to which there is no contest must be proved beyond reasonable doubt. All that is required is that the judge accept the common view of the parties or think that particular facts are more probable than not. -7- [1996] VicRp 56; (1996) 2 VR 49. The critical passage is at pp.60-62. -8- [1993] HCA 59; (1993) 177 CLR 520 at p.536. -9- Chow v. pirector of Public Prosecutions (1992) 28 NSWLR 593 at p.605 per Kirby, P. Moreover, as Lord MacDermott said in S. v. Recorder of Manchester (1971) A.C. 481 at p.493, the tenor of the law has been against erecting any barrier between the trial and the plea that would place them, as it were, in watertight compartments. See also R. v. Symons [1981] VicRp 33; (1981) VR 297 at pp.312-313. -10 See and compare R. v. Rumpf [1988] VicRp 55; (1988) VR 466 at pp.471-472; R. v. Ghandi (1986) 8 Cr.App.R.(S.) 391 at p.396 and Ruby, Sentencing (4th ed. 1994) at pp.56-58 and 69. -11- R. v. Ali [1996] VicRp 56; (1996) 2 VR 49 at p.60; joint judgment of Winneke P, Brooking and Hayne JJA and Southwell AJA at pp.23-24; R. V. Gardiner (1982) 2 SCR 368 at pp.414-415; R. v. Clayton (1989) 2 QdR 439 at p.441. The difference must not, however, be exaggerated. Even a trial is not adversarial in the same way that a civil proceeding usually is. See, for example, R. v. Beydag (Court of Appeal, unreported, 25th November 1996) at pp.19-22 and 28. -12- Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) A.C. 462 at p.481 per Viscount Sankey LC it is a case that repays re-reading from time to time. The Lord Chancellor was speaking of the duty of the prosecution to prove the guilt of the accused at a trial, not of "incidental matters of fact which the judge must decide,: cf. Wendo v. The Queen [1963] HCA 19; (1963) 109 CLR 559 at p.562. Sentencing is not incidental and the golden thread continues into the sentencing process. -13- [1983] VicRp 110; (1983) 2 VR 511. -14- A similar criticism might be made of the distinction between circumstances of aggravation and circumstances of mitigation. Some circumstances are bi-polar, in the sense that they are aggravating or mitigating depending on how you interpret the evidence. See, for example, R. v. Nagy [1992] VicRp 45; (1992) 1 VR 637 at p.640 and R. v. Gobin (1993) 85 CCC (3d) 481. In such cases the rule relating to circumstances of aggravation applies, as illustrated by the majority judgment in R. v. Gobin at pp.484-485. So, for example, if the issue is whether the offence was premeditated or committed on the spur of the moment, it is the former that must be established beyond reasonable doubt, the prisoner being given the benefit of the doubt on the latter. -15- The joint judgment in R. v. Ali [1996] VicRp 56; (1996) 2 VR 49 should be read fairly and in context. Crockett AJA and I made it abundantly clear that what we said about the circumstances of the offender and the circumstances of the offence was provisional. See, for example, p.60, where we said, "We shall first outline what we believe the better view to be. If it is adopted, its detailed application will have to be worked out", and the second-last paragraph of the judgment. -16- [1996] VicRp 56; (1996) 2 VR 49. -17- A more serious criticism may be that Ali's alleged addiction went to the motive for the offences and should have been classified as a circumstance of the offence. Of course, on the view favoured by the other members of the Court, R. v. Ali was rightly decided. -18- Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 CLR 638 at pp.642-643 and Sellars v. Adelaide Petroleum N.L. [1994] HCA 4; (1994) 179 CLR 332 at p.350. -19- The exceptions are not irrelevant to sentencing. For example, in assessing the prisoner's prospects of rehabilitation, judges properly take into account the likelihood of rehabilitation. They do not find as a fact that the prisoner will, or will not, offend again. -20- It may also be said that a reasonable doubt at a trial has a prescribed consequence, namely acquittal. But that is true also on a plea. The consequence is that the prisoner is given the benefit of the doubt and treated as favourably as a co-offender in respect of whom the material positively disproves the presence of an aggravating, or proves the presence of a mitigating, factor. -21- No case was cited to us that clearly establishes the position in Canada with respect to circumstances of mitigation. R. v. Gardiner (1982) 2 SCR 368 establishes that disputed facts relied on by the Crown in aggravation must be established beyond reasonable doubt: see Brown v. The Queen (1991) 2 SCR 518 at p.522. The logic of Gardiner's cage would seem to imply that, provided the prisoner discharges the evidentiary burden, the Crown must negative circumstances of mitigation and that is the view adopted in Ruby, op.cit. at pp.62-63. See generally R. v. Cooney (1995) 98 CCC (3d) 196 at pp.202-204. -22 It is also the position in western Australia if the statement of Burt CJ in R. v. Alois (1983) WAR 133 at p.136 represents the law in that State. See Lancridge v. The Queen, above, per Kennedy J at p.38. Contrast the position in New South Wales as evidenced by R. v. Blanchard (Court of Criminal Appeal, unreported, 10th September 1991) at pp.12-13 per Finlay J, with whom Lee CJ at CL and Carruthers J concurred. -23- To use the language of proof, the Crown should be required to prove the nature and quality of what happened but the offender should shoulder the burden of proving favourable things that are not part of what happened. -24- The past tense is deliberately chosen. Remorse and other mitigatory factors, such as attempted restitution or assistance to the authorities, arising after the commission of the offence are extraneous. Contrast the position in Canada as evidenced by R. v. Petrovic (1984) 41 CR (3d) 275 at p.289, where it was held that even absence of remorse had to be shown beyond reasonable doubt. Lack of remorse was treated as an aggravating factor, which in Victoria it is not: see R. v. Shoukan (Court of Appeal, unreported, 15th February 1996). It is unnecessary to consider whether R. v. Gortag (1973) Crim.LR 648, referred to in Fox and O'Brien, op.cit. at p.187 n.110, represents an exception or abundance of caution on the part of the judge. -25- This view is closer to that expressed provisionally in R. v. Ali [1996] VicRp 56; (1996) 2 VR 49 than might at first appear. It implies no change with respect to circumstances of the offence but limits circumstances of the offender to circumstances of a mitigatory character that are extraneous to the offence. It also has to be acknowledged that the distinction between circumstances of aggravation and circumstances of mitigation is necessary in order to locate the evidentiary burden of proof with respect to the latter. -26- It is theoretically arguable that psychiatric illness falling short of insanity that plays a part in the offence should also be established on the balance of probabilities by analogy with the common law defence of insanity, but the argument should not be accepted. The common law defence of insanity is at best an exception and at worst an anomaly. In any event one cannot say, even of psychiatric illness, that it is always of a mitigatory character: see R. v. Engert (1995) 84 A.Crim.R. 67 at p.68. -27- The standard of proof is the civil standard, i.e. proof on the balance of probabilities as explained in such cases as Neat Holdings Pty. Ltd. v. Karajan Holdings Pty.Ltd. [1992] HCA 66; (1992) 67 ALJR 170. See also R. v. Ali [1996] VicRp 56; (1996) 2 VR 49 at p.62. -28- They are almost invariably matters within his or her own knowledge. See R. v. Guppy and Marsh (1994) 16 Cr.App.R.(S.) 25 at pp.32 and 37-38. The English cases have to be treated cautiously, because they are often directed to whether or not a Newton hearing is required. such a hearing is required unless the prisoner's version is manifestly false or wholly implausible and counsel's statements (except as to extraneous circumstances of mitigation) are accepted in the absence of evidence to the contrary. The position appears to be similar in Canada. See, for example, R. v. Ahmed (1984) 6 Cr.App.R.(S.) 391 at p.392 and R. v. Goblin (1993) 85 CCC (3d) 481 at p.482. I would not regard duress that falls short of a defence as an extraneous circumstance of mitigation, which was the view taken in R. v. Broderick (1993) 15 Cr.App.R.(S.) 476 at p.479. Moreover an evidentiary burden cannot be discharged by a statement from the Bar table. There must be some evidence or other material before the court. -29- This is the point Crockett AJA and I were making in R. v. Ali [1996] VicRp 56; (1996) 2 VR 49 at p.61 when we said that there are some issues that the prisoner would have to raise in the same way, for example, as self-defence or provocation are raised on a trial for murder. The distinction between the legal and evidentiary burdens of proof is not an exception to our view or to the submission being considered. It is a corollary of that view and of the submission. Bray CJ made the same point, with the same examples, in Law v. need (1970) SASR 374 at p.379. -30- Fox and O'Brien, op.cit at p.164 n.5. R. v. Ali [1996] VicRp 56; (1996) 2 VR 49 at p.59; R. v. Gardiner (1982) 2 SCR 368 at pp.405-417. In Victoria, and possibly other parts of Australia, there has been both a legislative and a judicial trend in favour of more severe sentences. Not only the statistics but also the authorities bear that out. In those circumstances, it is a truism with real bite that it is better that nine offenders receive unduly light sentences than that one be visited with a disproportionate punishment. -31- If there is a distinction between disregarding a fact that has not been proved and assuming the existence of a fact that has not been disproved, a person's liberty should not depend on it. It is not to the point, in my opinion, that the same rules apply to bodies corporate and to cases where a non-custodial sentence will inevitably be imposed: cf. Langridge v. The Queen, above, per Kennedy J at p.38. -32- The Director submitted that there was no presumption of mitigating circumstances. That is correct. See, for example, R. v. Holt (1983) 4 CCC (3d) 32 at pp.51-52 and The Queen v. Wong (Western Australian Court of Criminal Appeal, unreported, 20th November 1995) at pp.14-15. But it is equally true that there is no presumption of self-defence, duress, honest and reasonable mistake of fact or any other common law defence. Just as at a trial the accused bears an evidentiary burden with respect to exculpatory factors, so on a plea he or she bears an evidentiary burden with respect to mitigatory factors. (The actual decision in R. v. Holt should be read in the light of Ruby, op.cit. at p.62 and The Queen v. Beresford (1972) 2 SASR 446 at p.449.) -33- In the case of an offence of strict liability the Crown must negative a defence of honest and reasonable mistake. in the case of an offence of absolute liability such a mistake would be only a mitigating circumstance, which, on the view favoured by the other members of the Court, the prisoner would have to prove on the balance of probabilities. See, for example, Gillies, Criminal Law (3rd ed. 1993) at p.103. -34- Cf. Ashworth, Sentencing and Criminal Justice (2nd ed. 1995) at pp.128-129. -35- Above, at p.38. -36- I venture to repeat, because they are important, the observations made above in fnn.23, 31 and 32. There is no difference in principle between circumstances of aggravation and non-extraneous circumstances of mitigation. -37- Our intervention in this case should not obscure the fact that the sentencing judge usually enjoys an advantage over an appellate court. Even if he or she has not heard any evidence, whether at a trial or on the plea, an appellate court does not see all the depositions or other material. see and compare R. v. Ahmed (1984) 6 Cr.App.R.(S.) 391 at pp.393-394 and R. v. Gandy (1989) 11 Cr.App.R.(S.) 564 at p.569, but also Ruby, op.cit. at pp.454-455. -38- R. v. Harris [1961] VicRp 36; (1961) VR 236 at p.237; Williams v. R. (1979) 23 ALR 369 at p.379; R. v. McGlade (1990) 12 Cr.App.R. (S.) 105 at p.109; Brown v. The Queen (1991) 2 SCR 518 at pp.521-523; R. v. Braun (1995) 95 CCC (3d) 443 at pp.451-456; Fox and Freiberg, Sentencing (1985) at paras. 2.303-2.305. -39- See fn.24 above. -40- If there is a reasonable possibility that an aggravating factor did not obtain, its absence is assumed. If there is a reasonable possibility that a mitigating factor did obtain, its presence is assumed. As to assessing the prisoner's prospects of rehabilitation, and other future events, see fn.19 above. -41- Lawyers understandably tend to concentrate on words and reify the concepts they represent. A psychologist might tell us that the choice between the competing views discussed in this judgment is really between the height of the speed bumps designed to induce appropriate caution as the judge motors towards the sentence he or she thinks just. -42- The relevant factor must clearly be of a mitigatory character: see fn.14 above.