54 Spigelman CJ undertook an exhaustive analysis of the authorities relevant to sentencing in those circumstances. The conclusion of the court, stated in paragraph 68, was that an admission of the general character that was there in question was appropriate to be taken into account as a circumstance of aggravation.
55 It is to be noted that, in all of the cases considered in detail by the Chief Justice, admissions or concessions of criminal conduct beyond that specifically contained in the charges were made. That is to be contrasted with the present case, in which no such admission or concession was made, and in which the issue did not specifically arise.
56 With JCW in mind, it is appropriate to examine just what Judge Latham did in this case. The remark she made was made in the context of her consideration of the applicant's claim to prior good character, and the leniency to which that would ordinarily entitle him.
57 Her Honour's conclusion that the applicant could not be treated as a first offender and therefore entitled to that leniency essentially deprived the applicant of something to which he would have been entitled had she accepted the claim of good character. She rejected the claim on the basis that the evidence before her established that the applicant had been guilty of cocaine importation for some period of time before the commission of the offences for which he stood to be sentenced. Although her Honour did not expressly say so, it is, to my mind, clear that what she held was not that the applicant's involvement in the present offences extended beyond the date specified in the indictment (which may have been of relatively limited importance) but that he had been involved in cocaine importation on other occasions - that is, in relation to shipments of cocaine different to that the subject of the charges which he faced. This finding is a matter of considerable importance and it was a finding that drew some support from the evidence of the transcripts of the conversations.
58 In JCW a good deal of reference was made to the "metaphysical" distinction, drawn in many cases, and well established in sentencing law, between allowing a reduction in sentence because of some mitigating factor, and, conversely, not increasing sentence where the mitigating factor is absent. One well known example is that where there is an entitlement to a reduction in sentence occasioned by a plea of guilty, a plea of not guilty does not attract a higher sentence: see, eg, R v Reiner (1974) 8 SASR 102; Siganto v R (1998) 194 CLR 656. Similarly, while prior good character usually attracts some degree of leniency, prior criminal history does not operate to increase sentence, merely to disentitle the offender to the leniency ordinarily attendant upon established good character.
59 Here it is not suggested that the sentencing judge regarded the existence of prior criminality as an aggravating factor such as to increase sentence; she merely used it to deny the applicant a leniency to which he would otherwise have had a legitimate claim. This appears to raise a novel question (at least, neither counsel referred the court to any direct authority). The question is (or two questions are): what standard of proof applies to the determination of prior criminality as a basis for rebutting or rejecting a claim to good character, the asserted criminality being unadmitted and uncharged? The antecedent question, which might determine the answer to that question, concerns which of the parties carries the onus of proof. If it is the Crown, then the answer to the original question must be (as the answer may be used adversely to the offender) that the standard is the criminal standard, beyond reasonable doubt. On the other hand, the claim to good character is put forward as a foundation for leniency by the offender, who is obliged only to satisfy the civil onus. Why then should the Crown not be able to rebut the claim, also on the civil standard? Notwithstanding the obvious logic and the force of the latter proposition, I am, for two reasons, of the view that the criminal standard nevertheless applies. Firstly, although it may be valid to say that the effect of the finding is the rejection of a claim made by the offender, it is at least equally valid to say that the finding deprives the offender of a significant benefit to which the absence of any criminal record would otherwise entitle him (or her). Secondly, and more importantly, the finding amounts to a finding of criminal conduct for which the offender has not been charged. That should not, in my opinion, be made on a basis other than beyond reasonable doubt, even where the finding will not result in an increased penalty, but merely in denial of a reduced penalty.