R v D

[1995] QCA 329

IN THE COURT OF APPEAL	[1995] QCA 329
SUPREME COURT OF QUEENSLAND	C.A. No. 32 of 1995
Brisbane
Before	Fitzgerald P. Byrne J. White J.
[R. v. D]

T H E Q U E E N

v.

D (Applicant)

FITZGERALD P.

BYRNE J.

WHITE J.

Judgment delivered 04/08/1995

REASONS FOR JUDGMENT - THE COURT

Application granted. substituted.

Appeal allowed.

CATCHWORDS:	CRIMINAL LAW - sentence - indecent dealing with a girl under the age of 16 years - whether the use of the complainant’s evidence of other offences was impermissible - circumstances which a sentencing judge ought to take in account when determining the appropriate sentence
Counsel:	T. Rafter for the Applicant Ms L. Clare for the Crown
Solicitors:	Gilshenan & Luton for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	16 March 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 04/08/1995

The applicant was convicted on 13 December 1994 at Townsville on one count of indecent dealing with a girl under the age of 16 years. The applicant had also been indicted on three counts of incest and one count of attempted incest. During the trial the Crown withdrew one of the incest counts and the Judge directed an acquittal with respect to another but left attempted incest on the same facts to be considered by the jury. They acquitted on that count. They were unable to reach a verdict with respect to the remaining counts, one of incest and one of attempted incest. The complainant was on those relevant dates, 16 years or older, thus indecent dealing was not available in the alternative. At the end of the trial the Crown indicated that it would proceed no further with the charges in respect of which no verdict was returned.

The applicant was sentenced on 19 December 1994 to imprisonment for 2½ years and seeks leave to appeal against that sentence. Counsel for the applicant contends that the appropriate sentence should have been a term of imprisonment of 12 months. The applicant is now aged 66 years having been born on 21 January 1929. He is the complainant's grandfather. The complainant was born on 12 February 1975 and gave evidence of a course of sexual abuse by the applicant over a period from early 1989 to 1992, beginning when she was 14 years.

The complainant was brought up by her grandparents from infancy and lived with them in their home until she left in 1993. The applicant was away from home regularly in his employment as a construction worker and bridge carpenter. The complainant’s evidence was that, after she had lost her virginity to her boyfriend when aged about 14 years, the applicant began a practice of following her from the bathroom to her bedroom after she had showered. He would lie her back onto her bed, mount her and rub his penis against her naked vagina. His penis was always flaccid. He would lubricate it and use his hand to rub it against the lips of her vagina until some level of ejaculation occurred. He was said to have behaved in this way nearly every weekend when he was home. The particulars of the incident constituting the count on which the applicant was convicted were that, in 1990 when the complainant was in Grade 10 and aged 15 years, the applicant (then aged 61 years) dealt with her as described prior to her going out with a friend. Later that same day, the complainant had an argument with her grandmother who had not been in favour of the outing, and in the course of the argument the girl complained of the sexually abusive behaviour of the applicant. Nothing was done about this accusation and the conduct continued.

The complainant’s evidence concerning the circumstances giving rise to the other counts upon which no convictions were secured needs to be mentioned. She gave evidence that in mid-1991 the applicant said to her that he wished to put his penis inside her vagina. On this occasion he pushed harder against her vagina with his hand or thumb. The complainant thought that the applicant placed his penis "just in the lips" of her vagina. There was evidence that because of the applicant's blood pressure problems, general health and the medication that he was taking, he was unable to achieve a normal penile erection. The complainant estimated five to ten acts of this type where the applicant's flaccid penis went "just inside". The particulars of the incest count which was left to the jury as an attempted incest and on which they acquitted the applicant related to an incident just prior to the complainant's graduation in 1992. The complainant said that the applicant rubbed his penis on her vagina for five minutes and then left. As to penetration she said, "I don't think so".

In an interview with the police the applicant admitted some sexual interest in his granddaughter but denied the conduct alleged by her. He said he could not achieve erection but could ejaculate. He asserted that the complainant had attempted to seduce him for money although this was subsequently denied by her. He did not give evidence at his trial.

On 18 May 1993 the complainant complained to the police that the applicant had indecently assaulted her on that day. On the following day she made allegations about the applicant to the police which were the subject of the trial. On 21 October 1993 the applicant pleaded guilty to indecently assaulting the complainant on 18 May 1993. The agreed facts were a momentary touching of the applicant's hand on the complainant's underwear in the area of her vagina. He was placed on a recognisance in the sum of $500 to be of good behaviour for 12 months. This conduct post-dated the matters the subject of the trial.

A summons in respect of the allegations made on 19 May 1993 was not issued until 19 April 1994, almost a year later, and at the commencement of the trial particulars were still being provided. It is contended on behalf of the applicant that delay is a relevant consideration in sentencing which ought to have been taken into account favourably to the applicant.

In the course of the trial the complainant was extensively cross-examined. As mentioned the applicant had claimed when interviewed by the police that the complainant had seduced him for monetary favours. The sentencing judge rejected that allegation, as he was entitled to do. It was also sought to be established at trial that the complainant and the applicant had by the time of trial resumed an ordinary granddaughter/grandfather relationship. Although the complainant maintained regular contact with her grandmother and sometimes spoke to the applicant, the sentencing judge found that her relationship with the applicant was damaged. His Honour also made reference to the fact that the applicant was in a position of great trust and responsibility in relation to the complainant, and said that she was to be regarded as more than a granddaughter because he was her de facto father, and his conduct represented a very serious breach of trust. He concluded that the applicant had shown no remorse and had made disreputable aspersions upon her character. In favour of the applicant he noted that he had a good prior work history. The applicant had two very early stealing convictions and the October 1993 plea of guilty in respect of subsequent conduct against the complainant, but these were not regarded by the trial judge as relevant to the sentencing process.

One of the reasons given by the sentencing judge for concluding that the applicant had shown no remorse was that he had engaged in a course of misconduct with the complainant. Further, in addition to stating that the applicant’s conduct must have had ongoing psychological consequences for the complainant, his Honour said that he had regard to the applicant's sexual abuse of the complainant over a lengthy period (according to her evidence):

"not for the purpose of imposing any heavier sentence on [the applicant] for the commission of this offence. To do so would be quite wrong. But I have regard to it in order to discover or to reveal the real nature of the relationship between yourself and your granddaughter, so as to properly assess the appropriate sentence for that offence. I must always keep in mind of course that I am sentencing you only for an offence of indecent dealing. That is not in any attempt to minimise the seriousness of such an offence, but it is to remind myself that I am not sentencing you for the more serious matter of incest."

It is at the foundation of the applicant’s argument that the use of the complainant’s evidence of other offences in these ways was impermissible.

The continuing uncertainty as to permissible findings when sentencing

It has been accepted in Queensland that, while there might be cases in which the sentencing judge ought sentence on the least culpable view of the facts, he or she is otherwise free to make findings of fact for the purpose of sentencing provided that such findings are supported by the evidence and consistent with the jury's verdict: R. v. Haselich [1967] Qd.R. 183; R. v. T. [1993] 1 Qd.R. 454 at p. 459; and see Kingswell v. R. (1985) 159 C.L.R. 264 at p. 276 per Gibbs C.J., Wilson and Dawson JJ., pp. 283, 284 per Mason J.; Skillin (1991) 53 A.Crim.R. 311; Savvas v. R. (1995) 69 A.L.J.R. 564. Judicial findings of fact for this purpose are not considered to conflict with the "fundamental principle that questions of fact affecting the liability of an accused to punishment should be decided by a jury when the trial is on indictment": Kingswell at p. 280, per Gibbs C.J., Wilson and Dawson JJ.; R. v. Meaton (1986) 160 C.L.R. 359, 367 per Brennan and Deane JJ. (dissenting); cf. R. v. De Simoni (1981) 147 C.L.R. 383. It has also been held that facts relevant to the sentencing process other than the details of the offence charged need be proved only on the balance of probabilities, with the necessary degree of satisfaction on the part of the sentencing judge varying according to the gravity of the fact to be proved and its potential effect on the convicted person: R. v. Jobson [1989] 2 Qd.R. 464. It is unnecessary for present purposes to consider whether the proposition for which Jobson is cited is correct.

That aside, cases come to this Court which indicate some continuing uncertainty with respect to the adverse findings which may be made against a convicted person and used by the sentencing judge in sentencing. In particular, questions arise with respect to findings which involve offences by the person to be sentenced additional to, or more serious than, the offence of which he or she has been convicted, or which aggravate the offence of which the person to be sentenced has been convicted by rendering that person liable to a greater maximum penalty.

A variety of circumstances can give rise to such questions.

Perhaps the most obvious cases are those in which evidence of the accused's conduct in the commission of the offence, of which he or she has been convicted, also establishes that the accused committed a more serious offence than that charged, or other offences, which might be more serious than the offence of which he or she was convicted. (Some of the issues which these cases raise are not too dissimilar from those which arise in other contexts concerning the conduct which constitutes an offence, and whether one or more offences are involved: see, e.g., R. v. Merriman [1973] A.C. 584; R. v. T.; R. v. G (C.A. No. 324 of 1991, unreported, judgment delivered 24 July 1992); Biddle v. Dimmock (C.A. No. 136 of 1992, unreported, judgment delivered 21 August 1992); cf. R. v. Ellem (C.A. No. 346 of 1994, unreported, judgment delivered 16 December 1994)).

Other cases which commonly raise questions concerning the findings to be used in sentencing are those in which evidence of the commission of offences other than the offence charged was admitted at trial (see, e.g., Hoch v. R. (1988) 165 C.L.R. 292 and Pfennig v. R. (1995) 127 A.L.R. 99), including prosecutions for sexual offences in which evidence of the sexual relationship between complainant and accused was admitted at trial and revealed offences other than the offences charged.

Similar problems to those referred to in the context of trial can occur when a conviction follows a plea of guilty, and the sentencing judge is provided with information for the purpose of sentencing. (It is unnecessary, on this occasion, to discuss the course which is appropriate if there is disagreement as to the facts between the prosecution and the offender: see Hurst v. Henry (C.A. No. 343 of 1994, unreported judgment delivered 3 October 1994); cf. R. v. O'Neill (1979) 2 N.S.W.L.R. 583, and Medcraft (1992) 60 A.Crim.R. 181; and see also R. v. Ford (C.A. No. 278 of 1994; unreported judgment delivered 7 December 1994)).

There is a large number of decisions in recent years with respect to findings for use in sentencing, with significant differences of opinion. It would require a very lengthy judgment to review all the modern decisions, but we have attempted to note many of the more important decisions of the High Court and this Court and the Court of Criminal Appeal, together with some examples from other States and England. It is obviously important that the principles governing such a fundamental aspect of the administration of criminal justice should be settled, and that impermissible findings not intrude into the sentencing process, whether or not disguised by meaningless distinctions or verbal formulae; for example, passages can be found purporting to justify "keeping in mind" matters that cannot be "taken into account".

Queensland

In R. v. Cooksley [1982] Qd.R. 405, the Court of Criminal Appeal refused an application for leave to appeal against a sentence imposed following the applicant's conviction on a single charge of incest with his daughter. In sentencing, the trial judge had referred to previous sexual conduct between the applicant and his daughter which had been the subject of evidence in the trial. Andrews S.P.J., with whom Kelly J. agreed, said at p. 407:

"Evidence as to prior misconduct was properly placed before the jury in order that it might have a logical background consisting of history of the behaviour of the accused towards his daughter against which it might better form a judgment upon allegations against him bearing more directly upon his conduct on the occasion in issue. In particular, such evidence minimises the risk attendant upon a jury's considering a single alleged incestuous act in isolation. It has been said that evidence of this kind has its own relevance not as tending to the proof of the facts upon which it bears directly but as tending directly towards proof of the guilt of an accused person of an offence with which he is charged."

Then, after endorsement of Haselich, he went on at p. 408:

"In the matter under consideration it would have been quite artificial and quite incongruous to expect the learned trial judge to ignore evidence relevant to guilt or innocence and so clearly relevant to a decision upon an appropriate sentence for the offence for which the applicant was convicted."

His Honour next proceeded to distinguish the decision of the New South Wales Court of Criminal Appeal in H. (1980) 3 A.Crim.R. 53, and the decision of the English Court of Appeal in R. v. Huchison [1972] 1 W.L.R. 398 and, after reference to s. 650 of the Code, which he considered need not be relied on, said at p. 409:

"In my view in such circumstances the Court may hear evidence of the development of a passionate relationship of an accused towards the victim of his (or her) passion without involving the establishment of other offences and certainly not for the purpose of adding to the severity of punishment attracted by a single subject offence, thus seen in proper perspective. ..."

McPherson J. gave extended consideration to whether the sentencing judge had trespassed into the area of impermissible findings, saying at p. 413-419:

"Acceptance of the proposition that, at least on a plea of guilty to a particular count, the court may not as part of the sentencing process receive and act upon allegations or even evidence of the commission by the accused of other similar offences which he has not admitted, or of which he has not been convicted, is I think implicit ... in the judgment of Street C.J. in the New South Wales case of H. (1980) 3 A.Crim.R. 53 at p. 59, and of that of Moffitt P. at p. 62, ...

On the other hand, it is clear from the reasons both of Moffitt J.A. and Begg J. that those learned judges considered that, on sentence, evidence was admissible of other acts of incest of which the accused had not been convicted in order to rebut a submission by the accused that the incident to which he had pleaded guilty ought properly to be regarded as an isolated one or otherwise in support of a plea in mitigation of sentence. On this view (which may differ in this regard from that approved in the English decision), proof, falling short of conviction, of other offences or acts of incest may properly be considered as defeating claims to mitigation of penalty but not as a circumstance of aggravation tending to increase that penalty.

... called in question by counsel for the defence, but this can hardly justify a conclusion that the accused was then admitting them. He had, after all, in giving evidence on oath at the trial expressly denied all those matters of impropriety with his daughter which had been given in evidence against him. True it is that the jury had preferred the evidence of his daughter and other Crown witnesses to that of the accused; but his conviction on the single count of incest charged against him could not, as Mr Vasta Q.C. conceded on appeal, be said by implication to have involved his conviction in respect of those other acts of incest or attempted incest given in evidence but not charged against him. Most of them were, in any event, not corroborated, and one, at least, occurred out of the jurisdiction and so could not have been the subject of a charge in Queensland. It seems to me to be impossible to distinguish the principle in R. v. Hutchison (supra) on the footing that there the evidence was taken before the judge after trial, whereas in the present case it was taken during trial. In both cases the accused would have been deprived of the right to a jury trial and verdict in respect of the other alleged offences; in both cases the other offences were not capable properly of forming an element in his sentence; and in both he remained liable to conviction and sentence in any further proceedings which might be taken in respect of those offences.

... Here there was, after conviction, no formal recitation by the Crown of the
specific facts on which reliance was placed for sentence. On the other hand,
there were some general references to matters which had in the course of trial
been given in evidence by the complainant and other Crown witnesses. These
matters included evidence of similar acts of incest commencing with an attempt
on the complainant at the early age of ten years, as well as testimony of the
complainant that the incest had ultimately become a regular event. Such
testimony had, necessarily without objection and rightly, been admitted either in
proof of 'system' or of 'guilty passion' on the part of the accused and in
accordance with the well known principle in R. v. Ball [1911] A.C. 47; see also

... His Honour in the present case would not have been entitled to punish the accused in respect of further offences given in evidence but not charged in the indictment against the accused. ...

...

We were pressed by Mr Vasta with the consideration that the trial judge had acted as he did in accordance with a long-standing practice in cases of this kind; and also with the considerable inconvenience that would result if the Crown were obliged to include in an indictment as separate counts innumerable other instances of the same offence. That a certain inconvenience would result is beyond question ... But the principle that a person may be sentenced only for offences in respect of which he has been arraigned, tried, and found guilty by the verdict of a jury, is plainly so fundamental to the legal system that considerations of convenience and established practice cannot properly be permitted to prevail against it. The conclusion of law that follows from the foregoing is that, on the authority of R. v. Huchison and H. as well as the other authorities referred to, the sentencing judge may not properly take into account for the purpose of punishing the accused, other offences, whether similar or not, in respect of which the accused has not been convicted, unless perhaps the accused explicitly admits the offences in question; and that this is so even where the evidence at trial or on sentence discloses the existence of such offences.

... Even though he may have been bound for the purpose of imposing sentence to view the conviction as involving a single instance of incest, it seems to me that he was entitled to examine the occasion of that act of incest in order to find in the offence charged, and found by verdict, circumstances, if any, of aggravation. In relation to the act in question, the evidence of the complainant, which must necessarily have been accepted by the jury, is that the accused took her alone to a secluded place, on what appears to have been a false pretext, and, as she said, 'made me undress and have intercourse'. ... The conduct of the complainant and the accused on the occasion charged is, however, virtually inexplicable except on the basis of the 'real relationship' between the accused and the complainant, and this is a factor which the court is entitled to consider: see H. (1980) 3 A.Crim.R. at p. 71, per Begg J.

That the accused was her father is, of course, established by the verdict: from this fact alone, from the fact that she lived at home with him, and from their respective ages it may be presumed that he possessed that authority and influence over her independence which is exercisable by a father over a daughter and by an adult over a child. Whether he in fact exercised such authority or influence, and used the opportunity and the physical power he possessed as a means of compelling her to engage in intercourse on the occasion charged, may legitimately be gathered from her evidence (which is consistent with the jury verdict) that he showed anger when earlier in her life she had refused him, and that he at times threatened to hurt, punish, or embarrass her if she did not submit to his wishes or took steps to disclose his behaviour. It is, I think, possible to confirm by reference to evidence, which is consistent with the verdict and without even taking account of other acts of intercourse as part of the sentencing process, that his conduct towards her kept her in a constant state of fear and wretchedness which compelled her to submit to him on the occasion in question. Such behaviour by a father is a gross abuse both of her parental duty and of the trust reposed in him by his young and essentially helpless female child. In any event, the other acts of intercourse, and the circumstances leading to them, were indicative of the character of the accused, and 'the character of a prisoner has always been regarded as a proper factor to be considered in determining the length of a sentence': see R. v. Gascoigne ([1974] Qd.R. 539)."

...

But I am, in the end, not satisfied that His Honour did indulge in the illegitimate exercise of adding into the sentence additional punishment for offences in respect of which no conviction had been secured. The impugned portion of His Honour's reasons is readily susceptible of the interpretation that he was there simply engaging in the permissible function of ascertaining the true character of the accused and the 'real relationship' of the accused and the complainant. It may be conceded that only a fine line may exist between ascertaining the character of the accused from the circumstances surrounding the offence (which may themselves involve criminal conduct) and punishing the accused for offences for which he has not been tried or convicted. Plainly great care must be exercised in observing the distinction, but all that is proscribed is the punishment of offences before or without conviction therefor. A consideration of the circumstances of the offence is not precluded simply because they also constitute contravention of the criminal law, as where rape is accompanied by physical violence, or robbery by a temporary deprivation of liberty. In my opinion His Honour's discretion did not miscarry by trespassing into the limited area that is forbidden to a sentencing judge."

In R. v. Boney, ex p Attorney-General [1986] 1 Qd.R. 190, the Attorney-General appealed against a sentence imposed after the respondent pleaded guilty to manslaughter. The sentencing judge had heard evidence of the facts surrounding the commission of the offence and made findings consistent with the respondent's guilt, not of manslaughter, but of rape and murder. The Court of Criminal Appeal, by a majority, found that these findings, which would have warranted a conviction for a more serious offence, could not be used in sentencing.

Andrews C.J., who dissented, said at pp. 192-193:

"His Honour was entitled to take into account circumstances surrounding the death of the deceased. Crown counsel intimated that he was not in a position to prove that death occurred after intercourse. The learned sentencing Judge was entitled to take into account facts which emerged during the giving of evidence relevant to issues properly raised before him and thus to act upon a finding that intercourse preceded death. His Honour's power to receive evidence on sentence is given by s. 650 of the Criminal Code which provides:

'The Court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed'

(see R. v. Cooksley [1982] Qd.R. 405. See also R. v. Smee C.A. No. 194 of 1985, delivered on November 18, 1985, especially page 3, in the judgment of Thomas J., unreported).

It was inherent in argument on behalf of the respondent that the Crown was conceding that sexual intercourse had not occurred before death and therefore that rape had not occurred. This simply was not so. The Crown did not suggest that the matter was to proceed on that assumption. It was mentioned as a reason for not asserting rape and therefore murder. His Honour in proceeding to sentence was not required to be satisfied beyond reasonable doubt of facts which were relevant to punishment or to exclude beyond reasonable doubt matters which might be mitigatory. He was entitled to act on the balance of probabilities but having regard to the significance of the bearing of facts considered upon the severity or otherwise of the sentence to be imposed for the offence with which he was dealing, bearing in mind that where different versions of relevant events might be said to be of like probability, one most favourable to the accused should be accepted. (see R. v. Welsh [1983] 1 Qd.R. 592). This is relevant because of a contention by the respondent that the acceptance by the Crown of a plea of guilty of manslaughter was acknowledgement that none of the circumstances set out in s. 302 of the Code by which an unlawful killing may be held to be murder existed. ...

Argument for the respondent opposing this appeal was to the effect that this Court could not give weight to facts which might establish any one or more of the incidents of murder set out in s. 302 of the Code."

His Honour discussed De Simoni at some length, stating at p. 193 that it was "not really in point", but at p. 195 he considered a statement quoted from Brennan J's judgment was "helpful in a broad sense". He then continued at pp. 195-196:

"... Here there is no separate element of the offence of manslaughter which is by the plea to be excluded from consideration. The respondent has not been charged with rape and it is not suggested that he should be sentenced for it. That rape is established by evidence taken does not enable the respondent to be sentenced as for murder or for rape but the court is not required to ignore behaviour of the respondent. Violence was shown to have been done to the deceased. Asphyxiation was caused by application of the respondent's hand. She was carnally known in circumstances which would show consent to have been extremely unlikely. In any event there was a submission for the respondent to the effect that he was not shown to have intended to kill or harm the deceased and that he placed his hand across her mouth to stop her from calling out. This occurred after she had been carnally known. The calling out which was to be thus prevented was hardly likely after consensual intercourse simpliciter. There were other signs of assault upon her which would not be consented to. Although the deceased might have called out to prevent the respondent's making off with her purse, His Honour found, in my respectful view, correctly, to the effect that it was the rape which took place just before she died from asphyxiation.

Thus what is clear on the evidence is that this unfortunate woman of advanced age was attacked in her home in the dead of night, carnally known either immediately before or immediately after the stealing of her purse and money and then asphyxiated whether with or without his intent by an act the respondent perpetrated to prevent her from crying out."

His Honour then returned to De Simoni and the subsequent decision of the High Court in

Kingswell and said at pp. 197-198:

"I regard the statements which I have cited from De Simoni as helpful in

demonstrating:

(a)	that where circumstances of aggravation are to be relied upon for the purposes discussed, they must be pleaded unless there is a statutory enactment rendering this unnecessary;
(b)	that where circumstances are not to be relied upon in order to punish the person as for a more serious offence or to render him liable to a greater level of punishment they may be regarded as circumstances surrounding the commission of the offence in order to consider what is a proper sentence to be imposed within the sentencing limits available.

A proper understanding of these statements will not result in a sentencing judge's being constrained to adopt an artificial factual basis of sentencing."

Then, at p. 200, he added:

"The argument for the respondent to my mind amounts to saying that evidence which would establish elements in s. 302 may not be relied upon so that a sentencing Judge may not take into account any facts except the death and on a count of manslaughter its being caused by the killer except where it occurs as a result of criminal negligence. This cannot be the law."

At p. 204, Macrossan J. said that the sentencing judge would not have been entitled to make a finding that the respondent had raped the deceased or killed her in any of the circumstances which would have made an unlawful killing murder. Then, at p. 205-206, he said:

"If in the circumstances of this case it is thought that the basis upon which the prisoner had to be sentenced was an artificially restricted one, then this is so simply because rape was not charged and a plea to a lesser charge than murder was accepted. These matters lie with the discretion of the Crown. Nevertheless the result was that it became necessary for the sentencing judge to put out of consideration certain background matters, which on the facts outlined and presented to him added so substantially to the serious overtones already involved in the facts relevant to the bare pleas of burglary and manslaughter. There was evidence which would have been relevant to charges of rape and murder, but it could not be considered by the sentencing judge concerned as he was solely with the charges of burglary and manslaughter. In my opinion a good deal of the argument of counsel for the appellant, complaining about the alleged inadequacy of sentence, wrongly endeavoured to reinstate matters which the learned judge had correctly put out of consideration.

In his remarks on passing sentence the learned judge, in my view, correctly and sufficiently stated the relevant matters which should have concerned him. He stated that he regarded the conduct of the prisoner as having been 'particularly callous'. He noted that the burglary involved 'a gross violation of the deceased's right to personal security' and he said that the prisoner killed the deceased by cupping his hand over her mouth for an appreciable period. ... In the whole of his remarks, I am unable to detect any incorrect statement of principle by the learned sentencing judge or any failure to take into account necessary matters.

The High Court has dealt recently with the principles which should be applied when a prisoner has to be sentenced in circumstances disclosing the commission of other serious offences which have not been charged and which accordingly, are not admitted under any plea which has been entered. The two cases are R. v. De Simoni (1981) 147 C.L.R. 383 and Kingswell v. The Queen (1986) 60 A.L.J.R. 17 in which the decision was handed down on November 18, 1985. Although the High Court was largely occupied in these cases with circumstances where it might be necessary to state matters of aggravation in an indictment and with the effect of not stating in an indictment matters which are defined as circumstances of aggravation, it did make a number of relevant pronouncements of general principle. The reasons of the Chief Justice became the reasons of the majority in De Simoni. At p. 389 the Chief Justice there stated 'The general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted.' The statement of Darling J. in R. v. Bright [1916] 2 K.B. 441 at 444 was accepted. At that page His Lordship said that a judge 'must not attributed to the prisoner that he is guilty of an offence with which he has not been charged'. It was accepted by the Chief Justice at p. 392 in De Simoni that in cases where the offence has been accompanied by circumstances of aggravation which are not charged, the 'trial judge may be required, in sentencing, to take an artificially restricted view of the facts'. In the more recent case of Kingswell (supra) the majority again accepted the general principles stated in De Simoni."

The judgment of McPherson J. was to similar effect. At pp. 207, he said:

"The evidence before the learned sentencing judge disclosed two features or circumstances principally relied upon by the Crown as justifying or requiring a longer sentence than that imposed by the learned sentencing judge on the charge of manslaughter. One was that the victim was killed by asphyxiation most likely caused by a pillow or a hand; the other that sexual intercourse had taken place at about the time of death and, as the learned judge found, shortly before it. There is a compelling inference that the victim was killed by asphyxiation in the course of preventing her from struggling or crying out while she was being raped. I say 'being raped' because it is quite incredible that a lady of her age and background would have consented to sexual intercourse with the accused. It is equally incredible that he would have believed that she consented.

The question is whether regard may properly be had to these circumstances as part of the sentencing process.

In my respectful view, that question falls to be determined by what was said by their Honours in the course of giving judgment in R. v. de Simoni (1981) 55 A.L.J.R. 469. ..."

Then, after discussing De Simoni, he said at pp. 208-209:

"If the foregoing propositions or principles are applied to the evidence presented and the facts found in this case, it becomes clear that the circumstance that the applicant may have raped his victim is not a matter to which consideration may be given in imposing sentence in this case. It is true that the sentencing judge made findings that were consistent with the conclusion that an act of rape had been committed by the applicant. It does not follow that a jury would have arrived at the same result. Other considerations apart, the standard of proof of facts for sentencing purposes has in Queensland been held to be the balance of probability and not beyond reasonable doubt: R. v. Welsh [1983] 1 Qd.R. 592. More 'fundamental and important' than this is the fact that the applicant was neither charged nor convicted of rape. He cannot therefore be punished for that offence: R. v. de Simoni, supra, at 472 col.1B - per Gibbs C.J.; at 474 col.2C, per Wilson J. Nor is it permissible to attempt to escape or diminish the impact of the rule by describing the applicant's conduct in less heinous terms, such as a non- consensual sexual intercourse or a forceful invasion of bodily integrity or privacy. Having accepted a plea of guilty to an offence less serious than the facts might warrant, it was not open to the Crown to ask the judge to rely on facts that would have rendered the offender liable to a more serious penalty: R. v. de Simoni, supra, at 473 col.1D, per Gibbs C.J.

A similar conclusion follows from the application of the foregoing principles to the circumstances of the killing itself. The charge to which the accused made plea of guilty was manslaughter, which is defined by s. 303 of the Criminal Code as unlawful killing under such circumstances as not to constitute murder. That and the principles to which I have referred mean that for sentencing purposes the judge was precluded from taking account of circumstances that would have constituted the killing a murder within any of the five forms in which that offence is defined in subsecs. (1) to (5) of s. 302. It does not, of course, mean that a single such circumstance must be disregarded because, if taken in conjunction with others not shown to be present in the case, the offence of murder would be constituted. It would, I think, be permissible, for example, for the sentencing tribunal to have regard to the fact that a death was, in terms of s. 302(4) caused by administering 'an overpowering thing'; if neither of the purposes mentioned in s. 302(4) were present, it would plainly then be open to the judge in imposing sentence to have regard to the presence of at least one such element of that form of murder. What is not permissible is to have regard to facts that make the offence one of murder in any of its five forms for the purpose of punishing an offender convicted of manslaughter as if he had committed and been convicted of the more serious offence. In this regard, I respectfully agree with and accept the conclusion of my brother Macrossan that the applicant could not, for the purpose of sentence, be regarded as having unlawfully killed the deceased under any of the circumstances set out in s. 302.

The result is that in some cases, of which the present is an example, the sentencing judge may be required to take what was said by Gibbs C.J. to be an 'artificially restricted view of the facts'. ...”

R. v. Jobson [1989] 2 Qd.R. 464 was another decision of the Court of Criminal Appeal. Jobson pleaded guilty to incest with his 15 year old sister. His contention was that it was an isolated occurrence, instigated by his sister. The prosecution relied on the complainant's evidence that there had been regular sexual intercourse between them for about four years. Because Jobson's appeal was allowed as a result of an error made by the sentencing judge with respect to the evidence on which he acted, it was unnecessary for the Court to decide what use could legitimately be made of the complainant's evidence of previous offences for the purpose of sentencing. However, opinions were expressed by Thomas J. and by Ryan J., with whom Connolly J. agreed.

At pp. 466-467, Thomas J. said:

The extent to which evidence of criminal activity other than that charged may In R. v. Cooksley [1982] Qd.R. 405, evidence of prior unlawful sexual activity between complainant and prisoner was regarded as being properly received by the sentencing court on the footing that it showed the 'real relationship between the accused and the complainant' (at 418), as well as rebutting the suggestion of isolated incident. Even the most conservative view seems to justify the reception of such evidence as negativing any benefit 'the respondent might otherwise have sought to obtain from the assertion that this was a wholly spur of the moment lapse'. (Per Street J. (dissenting) in R. v. H. (1980) 3 A.Crim.R. 53, 59).

"2.

be admitted and used.

The other members of the court went further -

'It provided the context by which the criminal quality of the act of
incest had to be judged ...' (Per Moffit P. at 62);
'The extent to which leniency has to be applied can only be
gauged by seeing the real relationship between the respondent and
the victim.' (Per Begg J., at 71);

and

'In fact he had been committing criminal acts upon his daughter for a long period of time - "good reputation" was falsely based and it certainly was not the case of "a good man who made just one silly mistake".' (Ibid.)

It has never been suggested that a sentence should reflect the criminality of prior acts. That principle is not infringed if a sentencing judge hears evidence of prior acts, and then uses them when passing sentence to rebut the notion of 'isolated lapse', and to place the act charged in appropriate context of a sexual relationship. It is sometimes suggested that it bears relevantly upon his character, but the true rationale in my view is that it is admissible on a similar basis to that in which it would be admissible in a defended trial (cf. R. v. Witham [1962] Qd.R. 49). It has never been doubted that in cases involving sexual activity between two persons, the whole history of their sexual relationship may be relevant, even in determining the question of guilt, (R. v. Rearden (1864) 4 F. & F. 76; 176 E.R. 473; R. v. Horne (1903) 6 W.A.R. 9; R. v. Allen [1937] St.R.Qd. 32; R. v. Kelly [1984] 1 Qd.R. 474; R. v. T.J.W., ex parte Attorney-General [1988] 2 Qd.R. 456; R. v. Bradley (C.A. 26/1989, Court of Criminal Appeal, 23 June 1989, unreported). This is far from saying that the court should always admit the whole history. Indeed, in a defended trial only so much of it should be admitted as is necessary to avoid the unreality of the situation recognised in Witham; and in the sentencing process it should be admitted and used only to the extent necessary to allow the act to be understood in its true context.

The implications of a sexual act are always more intelligible in the light of the sexual relationship of the persons concerned. More importantly, it will commonly occur that blame for performance of a sexual act cannot satisfactorily be cast unless the history of the sexual relationship of those two persons is properly understood. On this basis such evidence has a distinct but limited relevance upon sentence as it does upon assessing evidence of guilt.

In the present case the context of the sexual act would have a dramatic impact upon the appropriate sentence, according to whether the history and surrounding circumstances were those alleged by the defence or by the Crown."

Then, at p. 469, his Honour added:

"The facts in dispute were whether intercourse occurred in the context of a long- standing seduction through the prisoner taking advantage of his sister when she was much younger (twelve years old) and the further allegation that he was the active instigator in this particular instance. Whilst those facts go beyond the actual elements of the offence, they have a considerable bearing upon the sentence ... ."

At pp. 471-473, Ryan J. discussed Cooksley, Hutchison and H., and at p. 473 said:

"It is unnecessary for this Court to decide in R. v. Cooksley whether the principle stated by Andrews S.P.J. applied where there had been a plea of guilty, but in my opinion it does. It is wrong, in sentencing a person who has pleaded guilty to an indictment containing a single count, to act on the basis that he had committed other offences of which he has not been convicted. But it is proper for a judge in deciding upon the seriousness of the offence to which a prisoner has pleaded guilty to have regard to the circumstances in which the offence was committed in order to determine what is an appropriate sentence. It would be wrong, after thus ascertaining those circumstances, to impose a higher sentence than was warranted for the offence charged, since that would amount to the imposition of a greater sentence by reason of the commission of other offences than the one charged. But it would be permissible to have regard to them in deciding whether any leniency should be shown to the prisoner, for example because it was a 'wholly spur of the moment lapse' (per Street C.J. in R. v. H. at 59); or that it was 'some casual act in a moment of temptation" (per Moffitt P., ibid. at 62).

I reject therefore the submission that the learned sentencing judge was required to ignore the evidence as to the conduct of the prisoner towards his sister to which he had regard in sentencing him, and I consider that his sentencing remarks did not disclose that he was sentencing him for anything other than the act of incest to which he had pleaded guilty."

The remaining decision of the Court of Criminal Appeal is R. v. T.,which is, in some respects, unclear. The appellant was convicted on one count of unlawfully and indecently dealing with a girl under the age of 12 years. The incident which gave rise to the charge extended over a period of time on a single occasion and involved a number of acts, including, according to the complainant's evidence, penetration of her vagina by his penis against her will. All members of the Court considered that such evidence was admissible although rape was not charged, although Thomas J. at p. 457, Byrne J. agreeing on this point, considered it "a moot point whether evidence actually proving rape would suffice to sustain a count of indecent dealing". Later, on the same page, when considering the appellant's application for leave to appeal against sentence, his Honour said:

"... Plainly he could not be sentenced as for rape. ... There is no reason to believe that he was sentenced on any other basis than indecent dealing through a series of acts falling short of penetration."

Mackenzie J.'s summary of the evidence at p. 458 indicated an act of rape, although, at p. 459, his Honour referred to "the difficulty of establishing that penetration or attempted penetration was caused by the appellant's penis rather than his finger". Nonetheless, his Honour appears to have considered that the trial judge was entitled to sentence on the basis that acts constituting rape had occurred, saying at p. 459:

"Once the matter had gone to the jury on the basis of the evidence which had been admitted and the jury had found the appellant guilty it was open to the trial judge to act upon any view of the evidence that was not inconsistent with the jury's verdict. (R. v. Gardiner [1981] Qd.R. 394, R. v. Haselich [1967] Qd.R. 183, R. v. Harris [1961] V.R. 236.) ..."

Byrne J.'s statement at p. 460 that the "circumstances set out in Mackenzie J.'s reasons show that the sentence was not manifestly excessive" does not include an adoption of his Honour's statement of principle.

A number of decisions of this Court demonstrate the continuing use at trial level of findings of criminal activity that has not been charged.

In Highlands (C.A. No. 79 of 1992, unreported judgment delivered 27 July 1992), this Court allowed an appeal against a sentence imposed in respect of 26 counts of receiving which occurred over a period of above five months. The evidence before the sentencing judge revealed that the appellant, who had pleaded guilty to those charges, had been engaged in similar offences for a considerably longer period. After reference to Jobson, the Court said:

"... Here, whether or not one takes note of the offences committed during the additional three years, it was not a case of isolated incidents; there plainly was a business of receiving going on during the five months. The judge made it clear that he was sentencing the applicant only in respect of the charges laid, but the result arrives at tends to make one think that consideration of the 3½ years' activities must have produced a higher sentence than would have been imposed if there had been no suggestion of any receiving outside the five months.

There is an important distinction between sentencing having regard to the circumstances in which the offence charged was committed, which is permissible, and punishing the convicted person for distinct offences of which he or she has not been convicted, which is not. There is, of course, provision in the Code for taking into account other offences, under s.651, but that did not occur here.

Although the offences committed in the additional three years were of the same character, it appears, as those of which the applicant was convicted, they were not otherwise connected with the latter. We would not wish to encourage excessive pedantry in the approach to matters of this sort, but it does not appear to us possible to treat the existence of the additional three years of receiving activity as of other than marginal relevance to the proper level of sentencing for the activities of the five months.

In our respectful opinion, the learned judge's discretion must have miscarried and it is necessary for this Court to impose what it regards as a proper sentence, in the circumstances."

Similarly, in Shoo (C.A. No. 24 of 1993, unreported judgment delivered 23 June 1993), this Court allowed an appeal against a sentence imposed on a charge of stealing from a motor vehicle because the trial judge had made findings that the appellant had earlier unlawfully used the motor vehicle and had taken that offence into account in sentencing the appellant on the stealing charge. The Court said:

"This passage suggests that His Honour took into account as circumstances of aggravation his view that the applicant was guilty of an additional offence different from that of which he was convicted, namely the unlawful use of the complainant's motor vehicle. That is impermissible: R. v. Boney Ex parte Attorney-General (1986) 1 Qd.R. 190. It may be that His Honour intended to refer to preceding circumstances on the contextual basis recognized in R. v. Jobson (1989) (2) Qd.R. 464, 466-7, but His Honour's remarks seem to go beyond this.

As the division of opinion in Boney illustrates, the practical application of the principle that the prisoner should not be punished for an offence of which he has not been convicted can cause difficulty. That is so, for example, where the Crown relies on events forming part of the history of the development of a guilty passion, in a case of a sexual character: Reiner (1974) 8 S.A.S.R. 102, Cooksley (1982) Qd.R. 405. Andrews S.P.J. in Cooksley reviewed a number of authorities dealing with that problem which include various explanations of the way in which incidents of sexual misconduct other than that specifically charged may properly be treated as relevant on sentence. One can see that there may, in some instances, be a difficulty in reconciling the practice referred to in Cooksley with the basic rule that the offender may not be punished for offences other than those for which he has been convicted, as also in determining whether the approach taken in Cooksley can be applied to property as well as sex offences. Here, the learned primary judge has, with respect, simply taken into account against the applicant, when sentencing him, the commission of an offence with which he was not charged; the procedure set out in s.189 of the Penalties and Sentences Act 1992 was not followed."

In R. v. C (C.A. No. 153 of 1993, unreported judgment delivered 20 September 1993), the Court allowed an appeal against sentence imposed in respect of convictions following trial and said:

"The learned primary judge was faced with the difficulty that the offences of which the appellant was convicted were committed in a period from 15 September 1990 to 28 January 1992; at the earlier date the appellant was about 14½ and at the later nearly 16. However, the evidence submitted contained allegations of offences when the complainant was much younger: specifically, oral intercourse from the age of 6, and some degree of anal intercourse when she was only 10 or 11; these were, obviously, very serious offences. The way in which the judge dealt with them was as follows:

'It is my view that in all likelihood [the jury] substantially accepted the truth of [the complainant's] evidence so far as it related to the early part of the relationship between the two of you and other incidents of a sexual nature between the two of you, although not strictly part of the offences alleged against you ... I make it clear that I sentence you only for the offences of which you have been convicted.'

It is not absolutely clear what affect the judge's consideration of the earlier offences, i.e. those before 15 September 1990, had upon the sentence. The fact that his Honour troubled to state his view that the jury in all likelihood accepted the complainant's evidence about the earlier offences suggests that his Honour took them into account in some sense; doing so could hardly have favoured the appellant. ..."

Then, after reference to Cooksley, Jobson and Reiner, the judgment continued:

"In those circumstances, it does not appear to us that the evidence of the earlier acts, going back to the age of 6 years could, according to any proper principle, have had relevance to the sentencing process. It was a case in which, considered as background, it threw no light upon the seriousness of the sexual relationship charged, beginning when the girl was 14. It was of course a matter for the Crown whether to charge offences occurring over the previous 8 years; it did not do so and, in the circumstances of the present case, the evidence of those earlier offences is of no significant help in determining the proper sentence for the later offences.

...

It is necessary to keep in mind that the earlier and very reprehensible conduct alleged, over a period of years before the offences charged, cannot be punished under the guise of imposing sentence for the offences charged. Considering the latter in isolation, as in the circumstances of the present case one must do, it is our opinion that the application for leave to appeal against sentence should be granted, the appeal allowed ... ."

In R. v. K, ex parte Attorney-General (C.A. No. 203 of 1993, unreported, judgment delivered 23 September 1993), two members of the Court (the President and White J.) referred to Jobson and said:

"... Although the sexual relationship with the step-daughters appears to have commenced when they were in primary school and to have involve one occasion with each of sodomy these matters did not give rise to specific charges. It is necessary to sentence only in relation to the offences of which the respondent was convicted, ..."

In R. v. K (C.A. No. 269 of 1993, unreported, judgment delivered 22 October 1993), two members of the Court (Davies J.A. and Thomas J.) said, in connection with a father's appeal against the sentence imposed upon him for the rape of his five year old daughter:

"In the present matter, a question arises as to the effect to be given of evidence that the appellant encouraged Stead to have intercourse with the complainant child, and was actually present while this happened. It seems clear that this conduct was itself a criminal act, and it was not charged as such. Apart from the possibility that he was an aider or procurer of Stead's rape of the complainant, he could have been charged under ss. 210(4), 217, 218, 219 or 221 of the Code.

Although it would be contrary to principle to punish him for circumstances which amount to an offence with which he has not been charged (Cooksley (1982) Qd.R. 405; R. v. Boney ex parte Attorney-General (1986) 1 Qd.R. 190; R. v. Shoo C.A. 24 of 1993, unreported, 23/6/93), the evidence can be used to cast light on the real relationship between the accused and the complainant. It also in a relevant respect reveals his character and his attitude towards the complainant, and allows the rape to be seen in a context and not as an isolated aberration (Cooksley above p. 418; R. v. H. (1980) 3 A.Crim.R. 53, 59, 62, 71; R. v. Jobson (1989) 2 Qd.R. 464, 466-467). However the sentencing court must ensure that it does not add something on for additional criminal activity. In the end it is only to the extent to which it directly or indirectly casts light upon the rape of which he has been convicted that this evidence may be considered. It therefore plays a limited part in the present matter."

In R. v. Burrows (C.A. No. 269 of 1994, unreported, judgment delivered 15 March 1995), the Court held that it is impermissible for the prosecution, when addressing the judge on sentence following a plea of guilty, to make allegations that the offender has committed other offences of which he or she has not been convicted and has not asked to be taken into account. However, the judgment said that there might be "proper exceptions", although, in that instance, the prosecutor's allegations "did not fall within any recognized exception to the general rule".

In R. v. White (C.A. No. 92 of 1995, unreported, judgment delivered 26 May 1995), the applicant was sentenced for an offence of going armed in public in such a manner as to cause fear to a named person, a security officer at an hotel. The sentencing judge said:

"I am satisfied you produced that knife outside the hotel when you were involved in a fight with one security officer. You endeavoured to stab that security officer in the stomach. The publican grabbed your arm and stopped you. I have no doubt that within one or two seconds the security officer would have been stabbed in the stomach and seriously injured."

In this Court, Pincus J.A. said:

"The charge was that the applicant without lawful occasion went armed in public in such a manner as to cause fear to ... the security officer mentioned in the remarks I have quoted. The applicant was only charged with going armed so as to cause ... fear; he was not charged with attempting unlawfully to wound ... or with assaulting him. It has been said (Teremoana (1990) 54 S.A.S.R. 30 at 38) that some uncharged offences of lesser gravity may be taken into account as part of the circumstances surrounding the offence of which an accused has been convicted; an example might be an assault on a victim of a rape, after its completion. But the general rule is that the offender cannot be punished for offences of which he has not been convicted: De Simoni (1981) 147 C.L.R. 383 at 389; see also Kingswell (1985) 159 C.L.R. 264 at 278. It does not seem to me possible to justify taking into account, on sentencing on a charge of going armed so as to cause fear, an allegation that the offender actually used the weapon with which he was armed, in an attempt to wound; ..."

In their joint judgment, de Jersey and Ambrose JJ. said:

"It must be kept in mind ... that the applicant was not charged with any offence of which an attempt to stab or wound ... with the knife was an element. It would have been quite wrong for the learned sentencing judge to impose a sentence on the applicant designed to punish him for attempt to stab ... . A sentencing judge may not take into account circumstances of aggravation which would have warranted conviction of a more serious offence; R. v. Boney Ex Parte A.G. (1986) 1 Qd R 190. That is not to say of course that the circumstances in which the knife was produced or exhibited by the applicant in public was not relevant in determining what was the appropriate penalty to be imposed. It was not permissible, however, to take into account that the applicant attempted to commit an offence with the knife with which he was never charged when fixing upon a penalty."

New South Wales

In H., a father pleaded guilty to one count of incest with his 16 year old daughter, but the material before the sentencing judge showed that an incestuous relationship had occurred for some years. The sentencing judge considered only the single incident charged. The New South Wales Court of Criminal Appeal, by a majority, allowed an appeal by the Attorney-General and increased the sentence.

Street C.J., who dissented, said at p. 59:

"It has been contended by the Crown on this appeal that the evidence indicated that the actual offence charged was not a single isolated individual offence but was the culmination of a series of similar offences. In the view which I take this submission is not open to the Crown. The case was presented, the plea of guilty was proffered and maintained and the judge invited to and did deal with the case as one involving a single episode of incest. There is just no evidence of any earlier offence of incest and it would have been wrong for his Honour, equally as it would in my opinion have been wrong for this Court, to determine the matter of sentence upon an unproved assumption that there had been earlier acts of incest (Huchison [1972] 1 W.L.R. 398; Archbold's Criminal Pleading Evidence and Practice (40th edition) par. 634).

It does not necessarily follow that the exclusion of any suggestion of an earlier offence of incest should lead to a disregard of the context in which the present offence was committed. The respondent, although asserting to the police that he had 'done a stupid thing' and that 'it just happened' gave answers in questions 19 and 20 of the record of interview suggestive of prior sexual misconduct towards his daughter. The Crown is entitled to point to this as negativing such benefit as the respondent might otherwise have sought to obtain from the assertion that this was a wholly spur of the moment lapse, unprecedented by anything in any way irregular in his earlier conduct towards his daughter. But, in the light of the specific charge against him and the course of proceedings at the sentencing hearing, it is not correct to assert, as the Crown seeks to do on this appeal, that the respondent is to be sentenced on the basis that this act of incest is the culmination of a series of similar offences and that the sentence should accordingly reflect what is said to be the criminality involved in prior acts of incest."

Moffit P. said at p. 62:

"... The only matter of importance is that the concession of earlier sexual interference was before his Honour. Of course, it was necessary and proper that it be, because it provided the context by which the criminal quality of the act of incest had to be judged and because, properly regarded, it ought to have led to the rejection of the claim made that it was some casual act in a moment of temptation, perhaps deliberately offered by the daughter to entrap him.

If punishment is to be imposed for any past act of incest, this can only be done if the accused is charged with these offences either in specific or general terms, a matter which learned Crown counsel conceded. In so far as dissatisfaction with the decision on sentence arises from this source, the fault lies with the Crown in not enlarging the charge. Material existed to support the making of the charge of incest on this wider basis on the evidence of the girl and the corroboration provided by the answers of the respondent, incomplete although they were by not agreeing with all the girl had alleged. At least they carry a concession of some past sexual interference, but it is difficult to construe what the respondent said as other than that there had been past incest, but not as far back as four years.

If the Crown's motivation for the appeal was that the respondent should have been dealt with for the series of incestuous acts, then the same error exists as it did in Moin (unreported, Court of Criminal Appeal, New South Wales, 15th August, 1980) where initially it was argued that there should be brought to account in sentencing for convictions for particular defalcations, large sums of money involved otherwise although not subject to any conviction.

However, the consequence of charging the respondent with the one act of incest did not require or justify his past relationship with his daughter and in particular has sexual molestation of her being ignored. What counsel for the respondent sought to do, and it seems did with some success, was to have his past conduct ignored and have the single act of incest evaluated as though it was an isolated act. There was made an artificial case quite contrary to the truth. By ignoring the true position, the single act became the one mistake of a man who succumbed to a sudden temptation put before him by a daughter who, so it was put, may have offered the temptation deliberately to entrap him. On this basis, blame was sought to be placed on the daughter by attacks on her sexual conduct or ideas otherwise than in relation to the respondent. If the girl herself just prior to the act of incest had shown some morel looseness, this would harm rather than help, the case of a father who admittedly had been sexually interfering with his young daughter in a way capable of damaging her moral attitudes. The admitted past sexual interference with the daughter rendered false the case to which I have referred."

Begg J. said at p. 74:

"All the material relating to the respondent’s past history cannot be considered in isolation without forming an opinion as to what in fact existed on a sexual basis during this period of time between the respondent and his daughter. To do so was completely artificial and would give a completely false picture of the respondent from a subjective point of view.

It is one thing to say a man has never been guilty of any criminal act including incestuous attacks upon a daughter over a long period of time and has lived an exemplary life, and another to say that this man had an external good reputation but was at the same time secretly debauching his young daughter. The former might well merit a large measure of leniency. The latter, very little. In my judgment, the trial judge seriously misdirected himself to such an extent in this case that this Court should uphold what I believe to be an appropriate sentence to act as deterrent, to punish for the crime and to show the court's and the community's strong disapproval of this type of offence.

I should emphasise that subjective material is admissible purely to be weighed in considering the question as to whether or not a sentence otherwise called for by reason of the actual facts of the crime should be dealt with less severely, that is, to what extent should leniency be extended. ..."

More recently, in Overall (1993) 71 A.Crim.R. 170, the applicant was convicted of assault occasioning bodily harm, but a more serious charge of maliciously inflicting grievous bodily harm was not proceeded with. However, the facts on which the sentencing judge sentenced were sufficient to ground the more serious charge: Mahoney J.A., (Allen J. agreeing) at p. 173. His Honour continued at pp. 173-174:

"It was submitted that, on this basis, what was done was contrary to the law.

A sentencing judge must, of course, in assessing what is the appropriate sentence, take into account all of the circumstances of the offence. He must assess the total criminality. But there is a qualification to this.

'... the general principle that a sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no- one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as 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' (De Simoni (1981) 147 CLR 383 at 389; 5 A Crim R 329 at 333, per Gibbs CJ).

This principle is established and now has the authority of the High Court.
However, the application of it requires care. ..."

At p. 174, his Honour stated that while "the application of the principle is clear where the distinction between the instant offence and the suggested higher offence involves an additional ingredient or ingredients" - in that case the more serious offence required malice - "a more difficult problem arises where the difference between the instant offence and the higher offence is, as we shall describe it, a matter of degree" - in that case the offence of which the applicant was convicted involved actual bodily harm, but not grievous bodily harm. "Each is 'harm' but one is more serious than the other."

At p. 175, his Honour referred to the "difficult process required if the harm that has been caused by the assault is plainly and obviously grievous but the judge is required to assess a sentence appropriate only to actual bodily harm", but then appeared to disapprove of such a course as "artificial". Nonetheless, that was the course followed. His Honour said:

"The precise ambit of the principle in De Simoni remains to be determined. ...

In my opinion, it is not necessary, for purposes of the present case, to pursue further the precise operation of this principle. In my opinion, in this case the sentencing judge took into account not merely that what had been done constituted grievous bodily harm but also that it was done 'maliciously', within the statute. ... his narration of the facts involved, I think, facts which constituted both malice and grievous bodily harm and he took into account for this purpose the facts that he narrated. Accordingly, he took into account factors which would warrant conviction for the higher offence ... . This, in my opinion, was inconsistent with the decision in De Simoni."

Hunt C.J. at C.L., who dissented, referred at p. 176 to the judgment of Gibbs C.J. in De Simoni, and said at pp. 177-179:

"... it is now well settled that a sentencing judge may not take into account as matters of aggravation facts established in the evidence which would have rendered the offender liable to a more serious penalty than that which is prescribed for the offence to which he has pleaded guilty or of which he has been found guilty. Thus, as in the present case, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on facts which would have rendered the offender liable to a more serious penalty (see at 392; 335).

It has sometimes been argued in this Court that this principle applies also to exclude as an aggravating feature any fact established in the evidence if that fact would by itself have rendered the offender guilty of any other offence, whether or not that other offence would have rendered the offender liable to a more serious penalty than that to which he is liable for the offence for which he is being sentenced. That is not so. At first blush, the early 18th century principle to which Gibbs CJ referred at an earlier stage of his judgment (at 389; 333) would support such an argument, but the modern authorities which the Chief Justice went on to discuss (at 389-391; 333-334) make it clear that such a fact should be excluded only where it would have made the offender liable to a more serious penalty.

Thus, if the offender has pleaded guilty (or been found guilty) of the offence of sexual assault, the circumstance that he has, in addition to the sexual intercourse without consent which constitutes that offence (Crimes Act 1900 (NSW), s 61I), also done some other act which would by itself have rendered him guilty of the offence of common assault may be taken into account when sentencing him for the sexual assault offence, as the additional assault alone would not have made him guilty of the offence of aggravated sexual assault provided by s 61J and thus liable to a more serious penalty.

In the present case, the offence to which the applicant pleaded not guilty (maliciously inflicting grievous bodily harm) would have rendered him liable to a more serious penalty (penal servitude for seven years) than that for which he was being sentenced, assault occasioning actual bodily harm (penal servitude for five years), so that it would have been an infringement of the De Simoni principle if the judge took into account as a matter of aggravation any fact established by the evidence before him which would have shown that the applicant was guilty of the more serious offence and thus liable to the more serious penalty. To determine whether or not the judge did so, it is necessary to consider with some care the differences between these two offences in relation to what the Crown must establish. There are two such differences: one as to the state of mind with which the two offences are committed, and the other as to the consequences of the act done by the offender.

...

... in order to constitute an infringement of the De Simoni principle - that the judge took into account as matters of aggravation facts established in the evidence which would have rendered the applicant liable to a more serious penalty - it must be shown in the circumstances of this case that he took into account not only that the harm occasioned (that is, caused) by the assault amounted to grievous bodily harm but also that he had inflicted those injuries maliciously, ... There is no offence known to the law of assault occasioning grievous bodily harm which would make the offender liable to a more serious penalty than that applicable to assault occasioning actual bodily harm. Thus, the fact that in a case of assault occasioning actual bodily harm the injuries occasioned by the offender's assault amount to grievous bodily harm rather than merely actual bodily harm would be relevant as an aggravating feature.

In the present case, Mahoney JA has held (at 175) that the sentencing judge took into account 'not merely that what had been done constituted grievous bodily harm but also that it was done maliciously'. There is no doubt that the judge did take into account the fact that the victim suffered injuries which clearly amounted to grievous bodily harm (I shall return shortly to consider whether it was appropriate in this case to conclude that such injuries were occasioned - that is, caused - by the applicant's assault). But I am, with respect, unable to see where in his remarks on sentence the judge took into account the fact that the applicant inflicted such injuries maliciously in the sense I have described.

... There is nothing ... stated by the judge expressly or by implication which suggests to me that he was taking the maliciousness of the applicant's actions into account as an aggravating feature. For myself, I saw no breach of the De Simoni principle.

The reason that I joined in the orders of the Court upholding the applicant's appeal against sentence was what I saw to be the judge's error in taking into account as a matter of aggravation the extreme severity of the injuries suffered by the victim. In my opinion, he was not entitled to do so because of the Crown's implicit concession, when accepting the applicant's plea of guilty to assault occasioning actual bodily harm in satisfaction of the indictment charging him with maliciously inflicting grievous bodily harm, that, although the victim undoubtedly did suffer grievous bodily harm, it could not establish that the applicant had inflicted (or caused) that grievous bodily harm. ..."

Victoria

In Medcraft, the Victorian Court of Criminal Appeal allowed an application for leave to appeal against a sentence imposed following the applicant's conviction on one count of theft to which he had pleaded guilty. It was held that the sentencing judge impermissibly found, and took into account as an aggravating circumstance, that the victim had been drugged by the applicant, which finding should have been the subject of a separate count with which the applicant was not charged. At p. 185, the court (Phillips C.J., Crockett and Southwell JJ.) identified an error in the sentencing judge's understanding of De Simoni; and at pp. 185-188, they quoted extensively from a judgment of Cox J. (substantially agreed in by Jacobs J.) in the South Australian Court of Criminal Appeal in Teremoana (1990) 54 S.A.S.R. 30, which had in turn relied heavily on the judgment of King C.J. in Austin (1985) 121 L.S.J.S. 181. In the latter case, the following passage appears at p. 183:

"It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation.

Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.

If a person is to be punished for conduct which is said to be criminal, generally speaking justice requires that he be charged with it and have the opportunity of defending himself. If he is not charged with it, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime. This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree. But it seems to me that in the present case the learned sentencing judge was totally justified in the approach which he took. The circumstance relied upon by Mr Rice, antecedent to the unlawful imprisonment of these children, was related to the possession of materials which were said to be capable of producing an explosion or producing fire and were therefore capable of being used for some unlawful purpose. It seems to me that if the prosecution wished to have this man punished for conduct in relation to such materials he should have been charged with whatever crime he was alleged to have committed in relation to those materials and thereby given the opportunity of making whatever defences might be open to him in relation to them." [Our emphasis]

After quoting that passage, Cox J. continued in Teremoana at pp. 37-38:

"Sometimes Parliament will create an offence and provide for a variable penalty to be rated according to the presence or absence of specified aggravating circumstances. Section 85 of the Criminal Law Consolidation Act 1935 (SA) is an example of this. There is a two-tier penalty, for both a completed offence and an attempt according to the extent of the actual or potential damage. With statutory offences of this kind the sentencing court must take care, where the defendant has not been convicted of the aggravated form of offence, that the circumstances which it takes into account when fixing the sentence do not include the specified features of aggravation. The defendant is entitled to have those matters included in the information and proved against him, to the satisfaction of the jury, if necessary after the main trial, if the sentencing court is to pay any regard to them: see generally Bright [1916] 2 KB 441; (1917) 12 Cr App R 69; De Simoni (1981) 147 CLR 383; 5 A Crim R 329; Kingswell (1985) 159 CLR 264; 19 A Crim R 65; Hietanen (1989) 51 SASR 510; 45 A Crim R 26. There is no problem of this sort in the present case as the prisoner was specifically charged with attempted arson in its aggravated form, and the jury found him guilty of the offence as charged.

A careful reading of that passage reveals that it deals, without distinction, with a number of potentially different situations; its broad effect is that a matter cannot be taken into account in sentencing if:

(i)         it is another offence of which the person to be sentenced has not been convicted;

(ii)        it establishes that the offence which the person to be sentenced committed was more serious than the offence of which he or she has been convicted;

(iii)       it aggravates the offence of which the person to be sentenced has been convicted, in that it renders that person liable to a greater maximum penalty.

The breadth of the passage is confirmed by the discussion which followed of "more recent cases [than Bright] which appear to have been decided on the same principle". However, it does not in terms state that a circumstance of the offence of which the person to be sentenced has been convicted which also establishes another offence cannot be taken into account in sentencing if that other offence is not more serious than the offence charged and does not expose the person convicted to a greater maximum penalty.

That is made clear in a subsequent statement by Gibbs C.J. at p. 392, and underlies his concept of
"an artificially restricted view of the facts," which has been subsequently cited:

"... In the present case, whether s. 582 be construed according to its own terms, or with the assistance provided by the common law, it has, in my opinion, the effect that 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. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment.

It is only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury's verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury's verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty."

It is convenient next to refer to what was said by Brennan J. At p. 405, in a passage with which
Wilson J. agreed, his Honour stated:

"I am unable ... to attribute to ... 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.

At pp. 406-407, he continued Gibbs C.J.'s theme of artificiality:

"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 sentencing 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 ([1916] 2 K.B. 441). Darling J., delivering the Court's judgment, said ([1916] 2 K.B. at pp. 444-445) 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 ([1961] Tas.S.R. 106); Reg. v. Huchison ((1972) 56 Cr.App.R. 307, at p. 309). 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."

Wilson J. appeared to consider a circumstance of aggravation could assume different aspects at pp. 395-397:

"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 ((1925) 25 S.R. (N.S.W.) 218); Lovegrove v. The Queen ([1961] Tas S.R. 106); Reg. v. Boyd ([1975] V.R. 168); Reg. v. Foo ([1976] Crim. L.R. 456); Reg. v. Harrison ((1909) 2 Cr.App.R. 94); Reg. v. Toomey ([1964] Crim.L.R. 419); R. v. Bright ([1916] 2 K.B. 441). 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((1925) 25 S.R.(N.S.W.) 218); Reg. v. Boyd ([1975] V.R. 168); Reg. v. Marshall ((1917) 12 Cr.App.R. 208); Reg. v. Harris ([1961] V.R. 236). But he must not punish the prisoner for additional offences with which he has not been charged: Reg. v. Reiner ((1974) 8 S.A.S.R. 102); Reg. v. Huchison ([1972] W.L.R. 398).

...

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."

At pp. 398-399, he too referred to artificiality:

"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 ([1916] 2 K.B. 441). 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 thereafter 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."

Kingswell involved a number of issues of no present relevance, as well as the question whether circumstances which, by statute, made an offender liable to a greater maximum penalty should be charged in the indictment. At p. 277, Gibbs C.J., Wilson and Dawson JJ. accepted that that was necessary in Queensland by virtue of s. 564 of the Code.

Their Honours then went on, at pp. 278ff., to discuss not only De Simoni but the cases analysed in the Chief Justice's judgment in De Simoni. At p. 278, they said:

"In Reg. v. De Simoni ((1981) 147 C.L.R. 383), a case under the Criminal Code Code (W.A.) before its amendment in 1982, a majority of this Court held that where an indictment does not refer to a particular circumstance of aggravation, a judge in imposing sentence may have regard to that circumstance only if it would not render the accused liable to a greater punishment pursuant to the Criminal Code. ..."

While there are some difficulties with this passage - not least because of the definition of "circumstance of aggravation" in the Code - its genesis is probably the passage quoted above from the Chief Justice's judgment in De Simoni at p. 392.

Then, still on p. 278, the majority judgment in Kingswell pointed out that the Code protection to an accused or convicted person is wider than the original common law rule "since the definition extends to circumstances which would render the offender liable to a greater punishment without necessarily exposing him to conviction for a distinct and more serious offence". However, it was then pointed out that, since R. v. Bright [1916] 2 K.B. 441, the wider Code position had generally been accepted as the common law, and, at p. 280, their Honours said:

"There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice laid down in R. v. Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice in R. v. Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed."

Mason J.'s opinion in Kingswell was determined by his construction of the statute under which
Kingswell had been convicted, but at p. 283 he said:

"Because the question before this Court is resolved by construction of the Act, it is not necessary to determine in this application whether the existence of facts relevant to sentencing but not to conviction should in some circumstances be decided by the jury rather than by the judge, or to decide whether some distinction should be drawn for these purposes between facts relating to the offence, facts relating to the offender and other facts which may be relevant to the sentencing discretion. However, there is strong support for the view that a jury, once it has returned a verdict, has discharged its duties and has no further function to perform: R. v. Larkin ([1943] K.B. 174, at pp. 175-176); Reg. v. Warner ([1967] 1 W.L.R. 1209, at pp. 1213-1214; [1967] 3 All E.R. 93, at p. 96); Reg. v. Gardiner ([1981] Qd.R. at p. 409). The finding of facts relevant to the proper exercise of the sentencing discretion would then fall within the province of the trial judge, subject to the qualification that the view he adopts must be consistent with the verdict or plea: Reg. v. Gardiner ([1981] Qd.R., at p. 400); Reg. v. King ([1979] V.R., at p. 407); Reg. v. Harris ([1961] V.R. 236, at pp. 236- 237); Reg. v. Webb ([1971] V.R. 147, at pp. 152-153); Reg. v. Bedington ([1970] Qd.R. 353, at p. 364); Hughes v. The Queen ((1983) 10 A.Crim.R. 125, at pp. 135-136; 49 A.L.R. 110, at p. 122); Reg. v. Stehbens ((1976) 14 S.A.S.R. 240, at p. 245); Reg. v. De Simoni ((1981) 147 C.L.R. 383, at pp. 392, 396, 399); Laporte v. The Queen ([1970] W.A.R. 87, at p. 89).”

His Honour then went on to consider a submission "that a distinction should be drawn between cases in which facts must be determined for the purpose of deciding the appropriate sentence within a given range up to a stated maximum and cases in which the finding of certain facts alters the range of penalties itself." It is unnecessary to discuss the views which he expressed, which he clearly accepted were not applicable to Queensland because of s. 564 of the Code.

At p. 288, Brennan J., speaking of the common law practice, said that:

"... a distinction should be drawn between a finding of fact to guide the exercise of a sentencing discretion and a finding of fact on which the liability of an offender to a particular maximum penalty depends. The former is a familiar aspect of sentencing; the latter is ordinarily a consequence of a plea of guilty or of a jury's verdict of guilty. ... Thus the conviction on an indictment ordinarily determines the maximum penalty which the law prescribes, and other circumstances - though relevant to the seriousness of the offender's conduct and to the exercise of the sentencing discretion - are left to the consideration of the judge. ...

When the ambit of the sentencing direction is ascertained by reference to the conviction, the judge alone determines any question of disputed fact on which the exercise of his discretion depends: Reg. v. Bedington ([1970] Qd.R. 353, at p. 364); Reg. v. Harris ([1961] V.R. 236, at pp. 236-237). The judge is not at liberty to find that the offender was guilty of an offence graver than the offence of which he was convicted (R. v. King ((1925) S.R.(N.S.W.) 218); Reg. v. De Simoni ((1981) 147 C.L.R. 383, at p. 389)) nor to make findings that conflict with the verdict of the jury: Reg. v. Harris; Reg. v. Haselich ([1967] Qd.R. 183, at pp. 185-186); Reg. v. Boyd ([1975] V.R. 168, at p. 172)."

Then, still discussing the position where there is no provision such as s. 564 of the Code, his
Honour said at p. 289 that, subject to any constitutional limitation, a legislature is:

"... free to confer wider powers on the sentencing judge. It is free to create an offence and prescribed different maximum penalties depending not on the jury's verdict but on the judge's finding that a specified fact or circumstance exists. Given the power to do so, there may be yet a question whether the specified fact or circumstance is an element in a distinct offence attracting the greater penalty or whether there is but one offence for which different maximum penalties are prescribed: see, e.g., Rowe v. Butcher ([1936] V.L.R. 103); De Romanis v. Sibraa ([1977] 2 N.S.W.L.R. 264); Ross v. The Queen ((1979) 141 C.L.R. 432). If the legislature makes the specified fact or circumstance an element in an offence, the fact or circumstance must be charged in the indictment and, upon a plea of not guilty, its existence is determined by the jury's verdict; but if the fact or circumstance is not an element of an offence, its existence is a matter for the sentencing judge. ... the question whether the fact or circumstance is an element of an offence is resolved simply by construing the statute. ..."

At pp. 290-291, he continued:

"... When an indictment might and should have charged a previous conviction or any other circumstances by reason of which an offender is liable to a maximum penalty greater than the maximum penalty to which he would otherwise be liable, the sentencing judge cannot assume the jury's function and, finding what was not charged, hold the offender liable to the greater maximum penalty. In R. v. Bright ([1916] 2 K.B. 441, at pp. 444-445) Darling J. said:

'[The 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.'

The rule exemplifies an underlying principle, namely, that an offender's liability to punishment or his liability to a particular maximum penalty depends on the facts determined by his plea of guilty or by the verdict of a jury. The principle underlies a provision which Sir Samuel Griffith included in his draft Criminal Code. As enacted, the Criminal Codes of Queensland and of Western Australian contained - and the Queensland Code continues to contain - a provision that any circumstance of aggravation that is intended to be relied upon should be charged in the indictment (s. 564 (Q.); s. 582 (W.A.)), a circumstance of aggravation being defined to mean and include '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’ (s. 1). Whether or not a circumstance of aggravation when added to the other elements of a particular offence constitutes a different offence for the purposes (or some purpose) of the Code - a question discussed in Ross v. The Queen ((1979) 141 C.L.R. 432) - the Code ensured that, in the absence of a plea of guilty, the extent of an offender's liability to punishment should depend on the jury's verdict. In Reg. v. De Simoni ((1981) 147 C.L.R. 383) differing views were expressed as to whether the omission of a circumstance of aggravation from the indictment affects only the limits of the sentencing power or whether it affects also the exercise of the sentencing discretion ((1981) 147 C.L.R., at pp. 392, 396, 405), the majority holding the wider operation of the provision to be its true operation. On any view, when a circumstance of aggravation is omitted from an indictment under the Code, the offender is not liable to a greater maximum penalty than that to which he would be liable if the offence had been committed without the existence of that circumstance.

Kingswell

In the present case we are not primarily concerned with the interpretation of the Code provisions relating to the charging in an indictment of a circumstance of aggravation, nor are we primarily concerned with the construction of statutes which may create distinct offences containing circumstances of aggravation as elements. the Code provisions and the prima facie rule of construction merely exemplify the common law principle that a conviction on indictment, whether by plea or verdict, determines the extent of the offender's liability to punishment. ...."

Finally, so far as presently material, his Honour said at p. 294 that "the principle underlying" s. 564 of the code is "that an offender's liability to punishment or to a particular maximum penalty depends on the facts determined by a plea or verdict of guilty".

Deane J., the other member of the Court in , did not express opinions which are Dawson JJ. reasserted that the practice they had set out in Kingswell at pp. 279-281 should be followed in States other than those (e.g. Queensland) where the procedure is dictated by express statutory provision; Brennan and Deane JJ. held that that practice should not be followed because it was in conflict with "the essential point" of the majority decision in Kingswell. These differences in opinion continue to cause difficulties in some States (see, e.g., R. v. Hietanen (1989) 51 S.A.S.R. 510), but Queensland is exempt from the problem by s. 564 of the Code.

material to the present case.

In Savvas, the appellant was convicted of two offences against the Customs Act 1901 (Cth.), one of conspiring to import and the other of conspiring to supply a quantity of heroin, not less than the commercial quantity. The sentence imposed was challenged on the basis that the trial judge found, and took into account, "that heroin was in fact imported and distributed pursuant to that conspiracy and that the [appellant] was involved in these events"; evidence on which those findings were made had been legitimately led by the prosecution as evidence of overt acts. However, his Honour made it clear that the appellant's actual involvement in importation and supply "were relevant only as demonstrating the extent of the [appellant's] criminality by his involvement in the conspiracy", and that the sentence imposed was not intended to include "separate or additional periods" to cover any "further offences" in that involvement, of which the appellant had not been convicted.

It was submitted for the appellant that the sentencing should have taken place on the basis that the conspiracy was not implemented, and that to do otherwise, was to punish him for substantive offences of importation and supply, offences of which he had not been convicted.

The High Court dismissed the appeal. In a joint judgment, Deane, Dawson, Toohey, Gaudron and McHugh JJ. said at pp. 565-566:

"Putting to one side for a moment the particular situation of conspiracy, there are relevantly two principles at work in the sentencing process. They are reflected in the judgment of Gibbs C.J. in Reg. v. De Simoni ((1981) 147 CLR 383 at 389) where his Honour said:

'However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he had not been convicted ... The combined effect of the two principles ... 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.' "

Then, in dealing with sentencing for an offence of conspiracy, their Honours noted that, while the ingredients of the offence of conspiracy are complete once there is agreement between two or more persons, the conspiracy does not end at that point but continues "so long as there are two or more parties to it intending to carry out the design". The sentencing judge was "entitled to have regard to the part the appellant played". Earlier, their Honours had cited, with apparent approval, a passage from the joint judgment of Gibbs C.J., Mason, Aickin and Brennan JJ. in R. v. Hoar (1981) 148 C.L.R. 32 at p. 38 that "... where a court, imposing a penalty for conspiracy, takes into account the overt acts of the conspiracy, it would be wrong to impose a further penalty in respect of those acts".

Penalties & Sentences Act 1992

We can find nothing in the Act which modifies the position which otherwise exists according to our review of the case law. Provisions such as sub-ss. 9(2)(c) and (g), 11(a) can, and in our opinion should, be construed and given effect consistently with common law principles.

Section 189 can also be implemented consistently with those principles, and should be utilised whenever other offences are admitted and intended to be taken into account. (Other considerations aside, there are practical reasons for this course: cp. S. v. R. (1989) 168 C.L.R. 266 at p. 284.)

Conclusions

Sentencing judges ought experience little difficulty in practice if there is unqualified adherence to the fundamental principles which emerge from the decisions of the High Court in De Simoni and subsequent cases. We will try to summarise those principles in a manner which should be adequate for most purposes.

1.          Subject to the qualifications which follow:

(a)	a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;
(b)	common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at p. 593, R. v. T. at p. 455) ; and
(c)	an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:

(a)	a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;
(b)	a more serious offence than the offence of which the person to be sentenced has been convicted; or
(c)	a "circumstance of aggravation" (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed.

3. An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., "context" or the "relationship" between the victim and offender, or to establish, for example, the offender's "past conduct", "character", "reputation", or that the offence was not an "isolated incident", etc.

To withhold leniency by reference to offences of which a person being sentenced has not been convicted is, in our opinion, to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences. A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted.

This question arises most frequently in sexual cases involving family members, and, in Queensland at least, there is now provision for a charge of maintaining a sexual relationship with a child under 16 years (s. 229B), so that the prosecution can conveniently proceed for a series of offences if it wishes to do so.

We should add that, in our view, it would be intrinsically unfair to charge a person with a single offence and then adduce evidence of other offences in a proceeding in which his or her primary concern to defend the offence charged before the jury might conflict with his or her need to meet the possibility that, if he or she is convicted of the offence charged, the judge may "convict" him or her of the other offences and treat him or her more harshly, or less leniently.

It follows from what we have said that we consider that, in this matter, the trial judge's approach was wrong in principle and the applicant must be resentenced on the basis that he is guilty of a single offence of indecent dealing with his granddaughter when she was 15, which did not involve conduct amounting to incest or rape; i.e., even if it was non-consensual, there was no penetration. However, except for the error made by the trial judge to which reference has been made, his findings can be usefully referred to.

As has often been commented in cases of this kind, the facts peculiar to each one will dictate the appropriate sentence, but some reference to other decisions can assist in establishing an appropriate range.

R. v. Salcedo (C.A. No. 307 of 1989, unreported, judgment delivered 15 December 1989) concerned two counts of indecent dealing with a 12 year old girl for which the appellant was sentenced to 3½ years imprisonment on the first count and 2 years in respect of the second. In the course of trial the complainant was cross-examined and evidence was given with a view to showing that the complainant had tempted the applicant to engage in sexual activity. He was 43 years of age and had no previous convictions. He had a good work history and supported his family. The complainant had been entrusted to him as the father of one of her school friends and had gone to his home. He placed her hand upon his penis inside his clothing in respect of the first offence. On the occasion of the second offence, he removed their underclothing, placed her on a bed and placed his penis against the outside of her vagina and in due course ejaculated over her body. He told her not to tell anyone what had happened. On appeal the sentence in respect of count 1 was reduced to two years. R. v. B (C.A. No. 291 of 1991, unreported, judgment delivered 27 May 1992) was a case which had more serious features than the present. The applicant was a predator upon young children for sexual activity with a serious criminal history of such misconduct. He was sentenced to 2½ years in respect of a number of charges of indecent dealing not disturbed on appeal. R. v. Vidot (C.A. No. 262 of 1992, unreported, judgment delivered 20 October 1992) concerned an applicant aged 42 years with no previous convictions convicted of indecent dealing of a young girl. The conduct consisted of one occasion of inserting his fingers into her vagina and one occasion of lying on top of her and placing his penis near her vagina. His appeal against a sentence of 18 months imprisonment was dismissed. R. v. C (C.A. No. 44 of 1994, unreported, judgment delivered 20 April 1994) was an Attorney-General's appeal against a wholly suspended sentence of 2½ years' imprisonment for four counts of indecent dealing with a girl under the age of 14 years. The respondent was aged 55 years with a good work record and a slight criminal history of no relevant significance. The offences involved digital penetration as well as gross acts of oral genital contact. The offences had occurred some time previously and at the time of sentence the applicant was said to be leading a normal decent life and there was no obvious sign of harm to the child. The Court took the view that the offences were serious but noted that there was remorse, exceptionally good co-operation with the authorities and no risk of re-offending and dismissed the appeal. In R. v. Hauptmann (C.A. No. 196 of 1994, unreported, judgment delivered 3 August 1994) the applicant, a 53 year old man convicted of one count of indecent dealing with a child under the age of 12 years, was sentenced to 2½ years' imprisonment. At the time of the offence the complainant was 6 years and the applicant 52 years. The complainant visited his property with other children in order to ride a horse. He kept the child back when the other children went for a walk, pulled down her pants and kissed her vagina and then pulled down his own pants and rubbed his penis up and down against the child's vagina. Shortly afterwards the girl demonstrated distress and complained about the conduct of the applicant. He initially denied the allegations but eventually pleaded guilty on the morning of the trial. The child was said to suffer from nightmares and moodiness. The applicant had a previous criminal history including sexual offences involving children. His application was dismissed. In R. v. Butler (C.A. No. 16 of 1991, unreported, judgment delivered 23 May 1991) the applicant was convicted of one count of indecent dealing with a child under the age of 16 years after a trial and sentenced to imprisonment for 2½ years. The child was aged 14 years and his step-child. The acts complained of were not dissimilar to those in the present case. The applicant touched the complainant's breasts and vagina both outside and inside her clothing, and penetrated her vagina with his finger. The applicant was aged 38 years with a substantial criminal record but not for offences of a sexual nature. The Court noted that he had shown no remorse taking the matter to trial and compelling the complainant to give evidence. The sentence imposed was said to be well within the range appropriate to an offence of this kind committed by a man in a position of trust and with a significant criminal record.

Kuhl (C.A. No. 369 of 1992, unreported, judgment delivered 5 February 1993) was a married man aged 47 who was charged with indecent dealing of a girl under the age of 14 years. The complainant was aged between four and five at the time of the offences. Kuhl had many children placed in his charge and with his wife acted as foster parents for these children at the behest of the State Government. He had no prior convictions and an otherwise unquestionable character. There had been no complaints by any of the other children of ill-treatment by the respondent or his wife. The respondent had admitted to each of the offences and was willing to plead guilty in order to spare the child the ordeal of both committal and trial. As a result of these offences Kuhl’s marriage had broken down and his remorse had been “frank and considerable”. Kuhl received a three year suspended sentence on each count at trial and this was not disturbed on appeal.

Kuhl was referred to in Gardner (C.A. No. 10 of 1994, unreported, judgment delivered 12 April 1994). Gardner was an appeal by the Attorney-General against sentences imposed on the respondent for three offences of indecent dealing and one of indecent treatment of three different girls. The complainants were his stepdaughter, his daughter and his daughter’s friend. The three different girls were all under 16 years of age. Gardner was a 46 year old man , with a good working history. He had contributed significantly to the community through charities and voluntary work. He had an otherwise blameless life. He pleaded guilty and was sentenced to imprisonment for six months in respect of each of the first three offences and nine months for the fourth. The sentences were suspended for three years.

The court set aside the sentences imposed at trial and ordered that the respondent be imprisoned for 18 months on each of counts 1, 2 and 3, and for two years on count 4, all wholly suspended.

Grey (C.A. No. 447 of 1994, unreported, judgment delivered 5 May 1995) is a recent case that is clearly in favour of granting the applicant in this case a more lenient sentence. In that case a suspended sentence was imposed in respect of a much more serious offence.

Grey involved the indecent dealing of a ten year old child who was in the respondent’s care. The respondent was 35 years old with no prior criminal history, and showed considerable remorse. He was sentenced to two years’ imprisonment which was suspended. The court considered this an unusual case due to the absence of repetition and threats, and the sentence was not interfered with on an appeal by the Attorney-General.

While we are firmly of the opinion that circumstances such as the present, involving degrading indecency with an appreciable risk of lasting consequences for the victim, a serious breach of trust, a trial and a total lack of remorse, should ordinarily lead to a custodial sentence which should not be fully suspended in the absence of unusual features - indeed so much was implicitly accepted by the applicant in his submissions to this Court - we think that the single incident of which the applicant was convicted would be appropriately punished by a sentence of imprisonment for 18 months.

Accordingly, the application is granted and the appeal allowed. The sentence imposed below is set aside and, in lieu, a sentence of imprisonment for 18 months is substituted.