The proceedings in the District Court were flawed
19 It should be observed at this point that the proceedings before his Honour were conducted in a manner that was a long way short of satisfactory. I appreciate that a Friday in the District Court can present a judge hearing, what are euphemistically called, "short matters" with pressures to deal with those cases expeditiously and unnecessary procedural formality can result in an undue waste of valuable court time. But the matter with which the respondent was charged was clearly very serious and even his legal representative acknowledged that some type of custodial sentence had to be imposed. Yet the proceedings were constantly interrupted, the representatives of both parties were often not available when the matter was called on leaving persons with apparently little knowledge of the matter standing in their stead, and ultimately the sentencing judge had an unreasonable time constraint imposed upon him when the matter recommenced after lunch because the Crown representative was not available after 3 pm as she had to interview a witness for a trial the following week.
20 A particular defect in the proceedings, which is now of significance, is that it was never made clear by the parties with any particularity at all the extent of the factual disputes that had to be resolved by his Honour. This was largely because there was a degree of procedural informality that was inappropriate once it was clear that the parties were not ad idem as to the factual basis upon which the respondent was to be sentenced or the appropriate sentencing disposition. Disputes and issues that arose were determined in an ad hoc fashion, if at all. The prosecutor, who finally had carriage of the matter, complained at one stage that she had not had access to the pre-sentence report and was not aware of what had been said earlier in the proceedings when she was not present. Ultimately the order under s 11 was made without his Honour ever ascertaining the extent of the factual matters in dispute between the parties or attempting to resolve them.
21 It behoves the parties, especially after a "plea bargain", to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP, above at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case.