R v Shaw

Judgment

1. The matter is before the Court today for sentence in relation to a number of matters. When it was first listed for sentence hearing there were disputed facts matter was resolved on the basis that to permit the facts which were sought to be adduced by the Crown as to other matters may result in a breach of the principles of R v De Simoni (1981) 147 CLR 383.
2. The factual matters which were disputed were contained in the original version of the draft facts in paragraphs 33, 34, 35, 36 in part and 37 in part, and it was said by the representatives of the Crown on that occasion that that evidence would permit the Court to infer that the Offender was engaged in offending beyond that for which he was charged.
3. On the basis of the well-known principles stated by the Chief Justice in the matter of De Simoni, I resolve the disputed facts by excluding from the agreed facts those matters which were disputed. I did so for the reasons referred to by the Chief Justice, in particular in [8], the statement: "The general principle the sentence imposed on an Offender should take account of all the circumstances of the offence which is then subject to a more fundamental and important principle that no one should be punished for an offence of which he is not being convicted."
4. The concern was that to have regard to the facts in dispute and to draw the inference which the Crown contended for may breach that principle and result in at least the impression that he was being sentenced in relation to matters for which he had not been charged.