R v De Simoni

[1981] HCA 31

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ.

THE QUEEN v. DE SIMONI

(1981) 147 CLR 383

16 June 1981

Criminal Law (W.A.)

Criminal Law (W.A.)—Robbery—Sentence—Actual violence used but not charged in indictment—Plea of guilty—Circumstances of aggravation—Relevance of actual violence—Criminal Code (W.A.), ss. 1 (1), 391, 393, 582.

Decisions

June 16.
The following written judgments were delivered: -
GIBBS C.J. This is an application for the grant of special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of Western Australia allowing an appeal by the respondent, Luciano De Simoni, against the sentence imposed upon him on his conviction for robbery. (at p386)

2. The respondent pleaded guilty before a judge of the District Court of Western Australia to an indictment which alleged that on 25 May 1979 at Mundaring he "stole from one Florence Kathleen Scott with actual violence one hundred and eighty dollars ($180) in money the property of the said Florence Kathleen Scott". The indictment was in the form prescribed by the Criminal Practice Rules (W.A.) for use in stating the offence of robbery under s. 391 of the Criminal Code (W.A.). After judgment of conviction had been entered counsel for the Crown stated the material facts to the court. He stated that the victim of the robbery was a lady aged 78 and that at the time of the robbery the respondent struck her a heavy blow on the back of the head inflicting a wound to the scalp at the rear of the skull. The wound was about 10 centimetres in length and required eight stitches. Counsel for the respondent then addressed the Court, and did not dispute that the respondent had used personal violence or that he had wounded his victim by a blow to the head. The learned trial judge sentenced the respondent to imprisonment for a period of seven years and directed that he serve a minimum period of four years before becoming eligible for parole. In the course of the remarks which he made before imposing sentence the learned trial judge said:
"You have been convicted on your own confession of the crime of robbery. The punishment provided in the Criminal Code for that crime is imprisonment with hard labour for fourteen years and the Code also provides that if the offender wounds any person he is liable to imprisonment with hard labour for life. The Crown has seen fit not to add the aggravating feature and of course you come before me on the basis that the maximum penalty which can be imposed is fourteen years.
. . .
In my view this is a shocking crime. You did subsequently show some compassion. You assisted her by washing her wound which subsequently required eight stitches and in fact my recollection is that you left some money for her but I feel this was more because of the realisation at that stage of what you had done - struck from behind on the head with a piece of wood a 78-year-old woman. In my view this crime deserves punishment and substantial punishment." (at p386)

3. The respondent made application to the Court of Criminal Appeal for leave to appeal on the ground that the sentence imposed was "inappropriately high and outside the range of a sound discretionary judgment". The decision of the Court of Criminal Appeal was however based on another ground which was raised not by the notice of application but by the Court itself. The Court held that the facts that the respondent had wounded his victim and used personal violence to her were circumstances of aggravation within s. 582 of the Criminal Code (W.A.) and that it was not permissible for the learned trial judge, in imposing sentence, to have regard to any such circumstances of aggravation that were not charged in the indictment. It was accordingly held that the respondent should have been sentenced without any regard being had to the fact that he wounded his victim and used personal violence to her. The Court granted leave to appeal and allowed the appeal, and reduced the sentence imposed on the respondent to three years' imprisonment and directed that he serve a minimum term of eighteen months before becoming eligible for parole. (at p387)

4. The offence of robbery is defined by s. 391 of the Criminal Code (W.A.) which is in the following terms:
"Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery." (at p387)

5. Section 393 of the Criminal Code (W.A.) provides as follows:
"Any person who commits the crime of robbery is liable to imprisonment with hard labour for fourteen years.
If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds or uses any other personal violence to any person, he is liable to imprisonment with hard labour for life, with or without whipping."
It is plain that the second par. of s. 393 sets out "circumstances of aggravation" within the meaning of that expression as defined in s. 1 (1) of the Code. That section provides that unless the context otherwise indicates:
"The term 'circumstance of aggravation' means and includes 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." (at p387)

6. Section 582 of the Criminal Code, which deals with the form of indictments, contains the following provision:
"If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment." (at p388)

7. The meaning of these words in s. 582 is not altogether clear. Read literally, the words of the section appear to cast a duty on the person presenting the indictment rather than to place a fetter on the power of the trial judge to consider all the relevant circumstances in imposing sentence. However, there must necessarily be implied a prohibition in the words of the section. Obviously the Crown Prosecutor is prohibited from relying upon any circumstance of aggravation not charged in the indictment. But the prohibition must necessarily extend further: it must also be directed to the judge. It would be an absurd result if s. 582 required the judge to enforce the prohibition against the prosecutor, and prevent him from relying on a circumstance of aggravation that had not been charged in the indictment, but nevertheless permitted the judge himself to rely on such a circumstance. The crucial question then is whether a judge can be said to rely upon a circumstance of aggravation within the meaning of s. 582, when he takes that circumstance into consideration in imposing a sentence, and by reason of it inflicts a penalty more severe than he would otherwise have imposed. In the ordinary use of language, a judge who decides that by reason of the existence of a circumstance of aggravation he will impose on the offender a greater punishment than that which he would have imposed if the circumstance had not existed, can be said to rely upon that circumstance in reaching his decision. However, it is said that the significance of a circumstance of aggravation is that its existence renders the offender liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance - in other words, that it exposes the offender to liability to a greater maximum penalty. From this it follows, so it is argued, that s. 582 prevents a judge from imposing more than the maximum penalty provided for the offence as charged, but does not prevent him from taking the circumstance of aggravation into account as one of the circumstances of the offence which was committed, provided that he does not impose more than the maximum penalty provided for the offence if committed without the circumstance of aggravation. This argument, upon which the Crown relies, of course reads words into s. 582; it requires the section to be read as though it provided that the circumstance of aggravation may be relied upon for some purposes but not for others. As a matter of language, the definition of "circumstance of aggravation" does not require s. 582 to be read down in this way. The definition shows what is a circumstance of aggravation; s. 582 declares the consequence when a circumstance of aggravation has not been charged in the indictment. For example, the fact that the offender was armed with a dangerous weapon is a circumstance of aggravation; s. 582 has the effect that the fact that the offender was so armed may not be relied upon unless it was charged in the indictment. Section 582 does not say that the fact that the offender was so armed may not be relied upon for the purpose of rendering the offender liable to a greater maximum penalty; its words are general and unrestricted. (at p389)

8. At first sight it may seem unlikely that the framers of the Code intended that an offender should be sentenced on the fictitious basis that no circumstance of aggravation existed when it is found by the trial judge that such a circumstance did exist, particularly when such a finding is based upon an unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty. 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 has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it 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. (at p389)

9. At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century: Dominus Rex v. Turner (1718) 1 Str 140 (93 ER 435) ; and see Chitty, Criminal Law, 2nd ed. (1826), vol. 1, p. 231b. However, the modern authorities on the point normally commence with R. v. Bright (1916) 2 KB 441 . In that case the prisoner pleaded guilty to a charge of attempting to elicit information with regard to the manufacture of war material contrary to the Defence of the Realm (Consolidation) Regulations 1914 (U.K.). The trial judge took the view that it was the intention of the prisoner in doing the acts charged to assist the enemy. If such an intention had been charged and proved the prisoner was liable to the death penalty. He was sentenced to penal servitude for life. The Court of Criminal Appeal held that it was wrong of the trial judge to take this circumstance of aggravation into account when it had not been charged in the indictment. Darling J., who delivered the judgment of the Court, said (1916) 2 KB, at pp 444-445 that 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." (at p390)

10. There have been more recent cases which appear to have been decided on the same principle. One such case, whose facts bear a close resemblance to those of the present case, is Reg. v. Toomey which is noted in (1964) Criminal Law Review 419. In that case the prisoner had snatched a handbag from a woman aged 71 and she in consequence had suffered seven broken ribs. The prisoner's plea of not guilty to robberty with violence was accepted and he was sentenced to six years' imprisonment for simple robbery. In passing sentence the trial judge referred to the violence which had caused the complainant's injuries. The Court of Criminal Appeal said that it appeared that the sentence was based to some extent on the alleged violence and reduced the sentence to four years to conform to the plea of guilty to simple robbery. Similarly in R. v. Foo (1976) Crim LR 456 the accused pleaded guilty to attempting to possess heroin contrary to ss. 5 (2) and 19 of the Misuse of Drugs Act 1971 (U.K.). There was found in his possession a letter which indicated that he was a trafficker and on this basis the judge sentenced him to four years' imprisonment. It was held that as the offender had not been charged under s. 5 (3) of the Act (which made it an offence to be in possession with intent to supply) it was wrong to sentence him as a trafficker, and the sentence was reduced. In Reg. v. Huchison (1972) 1 WLR 398 , the Court of Criminal Appeal held that it was not right for the judge, in imposing sentence on a charge of incest, to take into account other related acts of incest with which the defendant had not been charged, since to do so would in effect deprive the defendant of his right to trial by jury in respect of those alleged offences. (at p390)

11. A similar approach was taken by the Court of Criminal Appeal of Tasmania in Lovegrove v. The Queen (1961) Tas SR 106 . In that case the offender was acquitted of attempted murder and convicted of causing grievous bodily harm. He was not charged with wounding with intent to cause bodily harm, but the trial judge sentenced him on the basis that he had intended to cause grievous bodily harm. The Court of Criminal Appeal held that the trial judge had followed a course which was not open to him and that the sentence should be reduced. Burbury C.J., after citing R. v. Bright (1916) 2 KB 441 , went on to say (1961) Tas SR, at p 108 :
"As the accused was not charged with wounding with intent to cause grievous bodily harm, it was not open for his Honour to sentence him upon that assumption - that is to say, upon the assumption that the crime was premeditated and that he intended to kill or cause grievous bodily harm."
The case was, of course, decided under the Criminal Code (Tas.), but that Code contains no provision equivalent to the relevant part of s. 582 of the Western Australian Code, and the decision rests on general principles rather than on any particular statutory provision. (at p391)

12. One decision which is out of line with these authorities is Reg. v. Sawyer (1967) VR 725 where the accused was acquitted of manslaughter but convicted of dangerous driving, and Smith J. held that it was for the trial judge, and not for the jury, to decide whether the dangerous driving had resulted in death, so as to render the accused liable to a heavier penalty, and, having found that the driving had resulted in death, imposed sentence accordingly. Smith J. does not appear to have been referred to any of the authorities in which this question has been discussed, and, with great respect to a very experienced judge, his observations appear to have been made per incuriam. (at p391)

13. In New Zealand it has been held that if it is desired to render an accused liable to the more severe penalty provided where there exist circumstances of aggravation, those circumstances must be charged in the indictment: R. v. Kirk (1901) 20 NZLR 463, at pp 472, 474 ; R. v. Martini (1941) NZLR 361, at pp 364-366 . It is however not clear whether in those cases the court intended to express a view on the question whether the judge might properly have regard to the circumstances of aggravation provided that he did not impose more than the maximum sentence for the offence committed in the absence of any such circumstances. (at p391)

14. Of course, we must not construe the provisions of the Criminal Code on the assumption that they were intended to reproduce the common law. Our task is to interpret the language which the codifiers have used. But if the meaning of a provision is doubtful resort may be had to the common law for the purpose of aiding the construction of that provision: see the authorities cited in R. v. Scarth (1945) St R Qd 38, at pp 43-44 . 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. (at p392)

15. It is not 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. (at p392)

16. The Court of Criminal Appeal in the present case therefore took a correct view of the effect of s. 582. Burt C.J., in his judgment, placed some reliance on two decisions on s. 344 of the Queensland Code - Cronin v. Hamilton-Smith; Ex parte Hamilton-Smith (1958) Qd R 24 and Hopkins v. Matthews; Ex parte Hopkins (1960) Qd R 396 . Section 344 provides that a person convicted of an aggravated assault shall in certain circumstances be liable to a greater punishment than that provided for common assault, and provides that circumstance of aggravation shall include the facts that the assault is an offence of a sexual nature, and that the person assaulted is a female. The section includes the following provision:
"An offender shall not be punished as for an assault of an aggravated nature within the meaning of this section unless he has been charged therewith and the circumstance or circumstances of such aggravation have been stated in such charge."
In Hopkins v. Matthews; Ex parte Hopkins it was held that a magistrate in sentencing on a charge of common assault could not take into account the fact that the offence was of a sexual nature (1960) Qd R, at pp 404, 405 . The case depends on the words of s. 344, but it is consistent with the conclusion that I have reached as to the effect of s. 582. In Cronin v. Hamilton-Smith; Ex parte Hamilton-Smith the appellant was charged with and convicted of, aggravated assault, but the magistrate imposed a punishment which did not exceed the maximum provided for common assault. The Court held that this was permissible under s. 344. In the course of his judgment Mack J. said (1958) Qd R, at p 32 :
"In each case the person assaulted is a female and the circumstance of aggravation exists whether or not it is stated in the complaint; but if it is not stated in the complaint, the defendant cannot receive the punishment under s. 344."
It is not necessary to consider whether this rather cryptic statement is consistent with the later decision in Hopkins v. Matthews; Ex parte Hopkins (1960) Qd R 396 . (at p393)

17. The application of s. 582 leads to difficulty in some cases of robbery. Under s. 391, it is an element of the offence that the offender has used or threatened to use actual violence to any person or property. Under s. 393 a circumstance of aggravation is that the offender wounds or uses any other personal violence to any person. In my opinion there is no difference between using actual violence to any person, and using personal violence to any person. Actual violence means no more than physical force which is real and not merely threatened or contemplated. Personal violence means violence to the person - bodily violence. Under s. 391 the relevant element of the offence may be satisfied by actual violence to property or by threatened violence to the person, and in those cases there will not necessarily exist any circumstance of aggravation. However the necessary element required by s. 391 may also be satisfied by actual violence to any person, and where that is the case the element of the simple offence will also constitute a circumstance of aggravation. With all respect I cannot agree with the view expressed by Webb and Henchmann JJ. in R. v. Holloway (No. 2) (1937) QWN 2 that the first part of s. 411 of the Criminal Code (Q.) (which corresponds to s. 393 of the Criminal Code (W.A.)) applies where a person uses violence to property or threatens to use violence and that the second part of the section applies where the offender wounds the person or uses any other personal violence. It is true that under s. 391 the actual or threatened violence must be used for a particular purpose which is not mentioned in s. 393, but that does not alter the fact that personal violence which constitutes a circumstance of aggravation under s. 393 may be the same as the actual violence which is an element of the offence under s. 391. (at p394)

18. If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within s. 393. On the other hand, if the actual violence used resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter. (at p394)

19. For these reasons it was not correct for the Court of Criminal Appeal to take the view that the trial judge, in imposing sentence, should have disregarded the fact that the respondent had used actual violence to the person of his victim, since that was an element of the offence with which he was charged and to which he pleaded guilty. On the other hand their Honours were correct in taking the view that it would not have been right for the trial judge to have had regard to the fact that the respondent had wounded his victim. However, in my respectful opinion the trial judge did not increase the sentence which he imposed because of the fact that the victim was wounded. He expressly mentioned that that circumstance of aggravation had not been charged, and then went on to refer to the facts in a way which shows that he treated the use of the actual violence as a matter which warranted substantial punishment. However, the manner in which he mentioned the fact that the victim was wounded - in relation to the act of the applicant in washing the wound - does not indicate that he relied upon the wounding in deciding upon the sentence. (at p394)

20. I consider that the Court of Criminal Appeal was wrong in the conclusion which it reached, not in relation to the effect of s. 582, but because it concluded that the trial judge had relied upon a circumstance of aggravation in imposing his sentence. The trial judge did rely upon the circumstance that the applicant used violence, but that circumstance was charged in the indictment as an element of the offence. Normally special leave to appeal would not be given to enable this Court to consider whether the Court of Criminal Appeal had fallen into error in thinking that the trial judge also relied upon the circumstance of wounding, but the other issues are of sufficient importance to warrant the grant of special leave. (at p394)

21. I would grant special leave to appeal and would allow the appeal. I would remit the matter to the Court of Criminal Appeal to enable it to give consideration to the grounds of the application with which it did not find it necessary to deal. (at p395)

MASON J. I would grant special leave to appeal and would allow the appeal for the reasons given by the Chief Justice. (at p395)

MURPHY J. The only questions raised concern the interpretation and application of several sections of the Criminal Code (W.A.). I agree with the Chief Justice's interpretation of s. 582, which was also that of the Court of Criminal Appeal of Western Australia. Sections 391 and 393 are difficult to reconcile; I am prepared to accept the Chief Justice's view of their operation in this case. (at p395)

2. Special leave should be granted, the appeal allowed and the matter remitted to the Court of Criminal Appeal. (at p395)

WILSON J. I have had the advantage of reading the reasons for judgment prepared by Brennan J. Apart from the matter of sentencing practice to which I shall refer, I agree substantially with what his Honour has written. In particular I agree with respect with the two basic propositions developed by him. The first is that Judge O'Dea was obliged to have regard, as he did, to the blow which the applicant delivered to the head of his victim because that assault was the actual violence which constituted an element of the offence of robbery to which he pleaded guilty. Secondly I agree that s. 582 of the Criminal Code (W.A.) ("the Code") did not require the trial judge, in his consideration of an appropriate punishment, to disregard the wounding which resulted from the blow because it was not alleged in the indictment as a circumstance of aggravation. In my opinion, s. 582 is a direction to the Attorney-General or other officer responsible for the presentation of an indictment. That document informs the Court of the offence which is alleged to have been committed, and the particularization of a circumstance or circumstances of aggravation serves to identify the maximum punishment to which, in the event of conviction, the offender is liable. This is the only purpose for which the Crown can be said to "rely" on the circumstance of aggravation. (at p395)

2. 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 SR (NSW) 218 ; Lovegrove v. The Queen (1961) Tas SR 106 ; Reg. v. Boyd (1975) VR 168 ; Reg. v. Foo (1976) Crim LR 456 ; Reg. v. Harrison (1909) 2 CrAppR 94 ; Reg. v. Toomey (1964) Crim LR 419 ; R. v. Bright (1916) 2 KB 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 SR (NSW) 218 ; Reg. v. Boyd (1975) VR 168 ; Reg. v. Marshall (1917) 12 Cr App R 208 ; Reg. v. Harris (1961) VR 236 . But he must not punish the prisoner for additional offences with which he has not been charged: Reg. v. Reiner (1974) 8 SASR 102 ; Reg. v. Huchison (1972) 1 WLR 398 . (at p396)

3. Applying these principles to the present case I have come to the conclusion that Judge O'Dea was entitled, and indeed bound, to take all the circumstances of the offence including the wounding into account. The basic proposition on which that conclusion rests is that the Code creates only one offence of robbery, namely, the offence constituted by s. 391. The presence of a "circumstance of aggravation", being a circumstance which if charged in the indictment and proved exposes the offender to liability to a greater maximum period of imprisonment, does not make the offence a different offence; it remains the crime of robbery, that is to say, conduct contrary to s. 391, notwithstanding the somewhat strange wording of that section. Section 393 is concerned only with punishment; it does not create a more serious offence of "aggravated robbery". The point may be illustrated by contrasting the provisions of the Larcency Act 1916 (U.K.). Section 23 of that Act created two distinct offences of robbery which are described in Archbold: Criminal Pleading Evidence and Practice, 36th ed. (1966), pp. 644 ff. as simple robbery (s. 23 (2)), and robbery with violence (s. 23 (1)) respectively. So in Toomey (1964) Crim LR 419 , the prisoner was sentenced to six years' imprisonment for simple robbery, his plea of not guilty to robbery with violence having been accepted by the Crown. The Court of Criminal Appeal concluded that the element of violence which formed part of the graver offence had been taken into account, and reduced the sentence to four years to conform to the conviction of simple robbery. (at p396)

4. In my opinion, the definition of "circumstance of aggravation" in s. 1 of the Code affords no support for the view that the presence of such a circumstance creates a new and graver offence so as to attract the sentencing principles to which I have referred. That definition provides that:
"The term 'circumstance of aggravation' means and includes 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." It is clear that only one offence is in contemplation. (at p397)

5. 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 p397)

6. The case of Bright (1916) 2 KB 441 is, I think, consistent with the view I have expressed, although it was a rather special case. It occurred in wartime. The appellant pleaded guilty to two offences under the Defence of the Realm (Consolidation) Regulations 1914 (U.K.) each of which carried a maximum penalty of penal servitude for life, subject to a proviso that if the jury found that the offence was committed with the intention of assisting the enemy then the maximum sentence was enlarged to "death or any less punishment". Avory J. sentenced the prisoner to life imprisonment, remarking that had he not pleaded guilty the jury would almost certainly have found the intention of assisting the enemy in which event he would without the slightest hesitation have imposed the sentence of death. The regulations expressly required that the element of statutory aggravation be regarded only if so found by a jury. The Court of Criminal Appeal reduced the sentence to ten years' imprisonment. I do not find the reasoning of the Court to be entirely clear, but I infer that their Lordships, while not disapproving of the fact that Avory J. called evidence to establish the motive with which the prisoner had committed the offences, took the view that he had nevertheless given too much weight to his conclusion. In other words, he sentenced the prisoner having regard to the fact that the regulations prescribed a greater maximum punishment for an offence committed with an intention to assist the enemy, and in so doing dealt with him on the footing that he had been guilty of that aggravating fact. He should have regarded the motive merely as one circumstance surrounding the offence rather than as a matter of statutory aggravation. I think this inference is supported by the passage in the judgment of their Lordships which reads (1916) 2 KB, at pp 444-445 :
" . . . if the case be such that the prisoner's motive in committing the offence is one of the questions which the jury have to decide the judge must not attribute to the prisoner a motive which has been negatived by the verdict of the jury, and he 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". (at p398)

7. In New Zealand, although in the Criminal Code there is no counterpart to the second paragraph of s. 582, it has been established that a circumstance of aggravation which has the effect of exposing the offender to a higher maximum punishment should be specified in the indictment: R. v. Kirk (1901) 20 NZLR 463 ; R. v. Martini (1941) NZLR 361 . In R. v. Goodman (1906) 9 GLR 37 , Cooper J., while affirming the principle laid down in Kirk, was of the view that he was entitled nevertheless to have regard to the higher punishment even though the circumstance of aggravation was not averred in the indictment because the depositions in the case made the presence of that allegation plain, and it was established by the evidence. However, that view was plainly disapproved by the Court of Appeal in Martini. (at p398)

8. 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. (at p399)

9. 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 KB 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 therafter 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. (at p399)

10. Counsel for the respondent adverted to the jurisdictional implications of the case in that by refraining from charging the circumstance of aggravation in the indictment the trial was held in the District Court instead of the Supreme Court. But in my opinion this is not a consideration which throws any light on the meaning of s. 582. There are many discretions committed to the Crown in the administration of criminal justice. (at p399)

11. In his reasons, Burt C.J., with whom Jones J. concurred, cited with apparent approval two decisions of the Supreme Court of Queensland: Hopkins v. Matthews; Ex parte Hopkins (1960) Qd R 396 ; Cronin v. Hamilton-Smith; Ex parte HamiltonSmith (1958) Qd R 24 . The view taken by the Court in the former case was that because, in a complaint alleging an aggravated assault a particular circumstance of aggravation had not been stated in the complaint the magistrate was precluded from taking that circumstance into consideration. With respect, I think that the view is to be seen in its statutory context. Section 344 of the Queensland Criminal Code, after setting out the circumstances of aggravation any one of which permitted a court of petty sessions in dealing with an offence of common assault to have access to a greater range of punishment, expressly provided:
"An offender shall not be punished as for an assault of an aggravated nature within the meaning of this section unless he has been charged therewith and the circumstance or circumstances of such aggravation have been stated in such charge."
Both the location and the wording of this provision may materially distinguish it from the meaning and application of the second paragraph of s. 582, but in any event the provision is not before us and I express no opinion upon it. (at p400)

12. The second Queensland case to which the learned Chief Justice referred, that of Cronin v. Hamilton-Smith, was cited by counsel in argument in Hopkins v. Matthews but not referred to in the judgments of the members of the Court. There is a passage in the reasons of Mack J., with whom Stanley J. agreed, which suggests that in this case a different approach was taken (1958) Qd R, at p 32 .
"In each case the person assaulted is a female and the circumstance of aggravation exists whether or not it is stated in the complaint; but if it is not stated in the complaint, the defendant cannot receive the punishment under s. 344."
However, as I have said, the provisions in question are readily distinguished, and it is unnecessary to pursue the matter. (at p400)

13. I have come to the conclusion that the learned trial judge did not err in so far as he may have had regard to the wounding when sentencing the respondent. His task was to consider the circumstances of the offence together with the matters pleaded in mitigation, and to determine an appropriate sentence for an offence carrying a maximum punishment of fourteen years. (at p400)

14. The Court was asked, in the event of special leave being granted, and the appeal allowed, to remit the matter to the Court of Criminal Appeal in order that it proceed to deal with the respondent's appeal against the sentence on the grounds advanced by him. (at p400)

15. I would therefore grant special leave to appeal, allow the appeal, set aside the decision of the Court of Criminal Appeal and remit the matter to that Court to be further dealt with according to law. (at p401)

BRENNAN J. The applicant pleaded guilty before the District Court of Western Australia to a charge on indictment that he stole from one Florence Kathleen Scott with actual violence $180 in money, the property of the said Florence Kathleen Scott. Judge O'Dea sentenced him to imprisonment with hard labour for seven years with a direction that he serve a minimum period of four years' imprisonment before being eligible for parole. On appeal to the Court of Criminal Appeal, the sentence was reduced to three years' imprisonment with a direction that he serve eighteen months' imprisonment before being eligible for parole. The Crown seeks special leave to appeal to this Court in order to canvass the ground upon which the Court of Criminal Appeal reduced the sentence, a ground which turns upon some provisions of the Criminal Code of Western Australia. (at p401)

2. The indictment, following the form prescribed, charged the crime of robbery, which is defined by s. 391 of the Code:
"Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery." (at p401)

3. Section 393, which prescribes the maximum punishment for robbery to be fourteen years' imprisonment with hard labour, provides for a greater maximum punishment when an offender is convicted of robbery with one or more of the circumstances of aggravation specified in the second paragraph of the section:
"If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds or uses any other personal violence to any person, he is liable to imprisonment with hard labour for life, with or without whipping." (at p401)

4. At or immediately before the time of the robbery, the appellant wounded his victim, Mrs. Scott, by hitting her on the head with a piece of wood. The prosecutor's statement of the material facts showed that Mrs. Scott was an aged woman living alone, that the appellant asked Mrs. Scott for money, and that she refused. The prosecutor stated:
"She turned her back on him and he struck her a heavy blow on the back of the head inflicting a wound which apparently was some four inches in length to the scalp at the rear of the skull - a 10cm longitudinal wound - which, when she went to the hospital the next day, required some eight sutures to her head."
In passing sentence, Judge O'Dea took account of the act of violence alleged, and his Honour was thereby satisfied that he should impose substantial punishment. (at p402)

5. The respondent succeeded in his appeal against sentence to the Court of Criminal Appeal on the ground that the sentencing judge ought not to have taken any circumstance of aggravation into account unless the Crown had charged the respondent in the indictment either with wounding or with some other personal violence as a circumstance of aggravation. The indictment did not charge a circumstance of aggravation. A circumstance of aggravation is defined by s. 1 of the Code as "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". Section 582 of the Code requires, inter alia, that:
"If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment." (at p402)

6. The Court of Criminal Appeal construed s. 582 as requiring the judge to leave the circumstance of aggravation out of account in imposing sentence although the circumstance of aggravation is admitted by the offender. Burt C.J., with whom Jones J. agreed, said:
"If it is not charged in the indictment it cannot be relied upon. I am unable to accept the submission that to make use of an aggravating circumstance in the sense of the definition of that expression in support of a judgment that the offence disclosed by the fact is a 'shocking crime' deserving of 'substantial punishment' is not to rely upon the circumstance of aggravation within the meaning of s. 582."
Smith J. was of the opinion
"that if the prosecution fails to plead a circumstance of aggravation the Crown must be deemed to have 'waived' the circumstance which might have supported the greater penalty and that the trial Judge must impose his sentence without reference to that aggravating circumstance irrespective of how convincing the Crown evidence might appear to be from the depositions and irrespective of whether there is any challenge by the accused to the accuracy of that evidence. The outcome of such an approach inevitably, of course, will be that the sentencing Judge will impose his sentence not on the true facts but on a consciously chosen artificial basis such as sometimes occurs in the case of the acceptance by the Crown of a guilty plea to a lesser charge." (at p402)

7. The Court of Criminal Appeal held that no regard should have been had to the fact that the respondent wounded his victim and used personal violence to her. In Smith J.'s phrase, the sentence substituted by the Court of Criminal Appeal was imposed "on a consciously chosen artificial basis". (at p403)

8. To omit consideration of the personal violence done to Mrs. Scott is to omit consideration of conduct constituting an essential element of the offence to which the respondent had pleaded guilty. The prosecutor's statement of facts did not disclose any use of actual violence or any threat to use actual violence to Mrs. Scott other than the blow upon her head, and counsel for the respondent expressly denied that there was any other violence used or threatened. It was accepted that the respondent hit Mrs. Scott in order to obtain money, and the hitting of Mrs. Scott was thus the only actual violence to which that allegation in the indictment related. (at p403)

9. It might be thought that an act of violence alleged to constitute an element in a crime of robbery under s. 391 cannot constitute a circumstance of aggravation under s. 393, or, conversely, that personal violence falling within the latter section cannot constitute an element in the crime of robbery. Clearly an act of personal violence can constitute a circumstance of aggravation although it is not the violence which constitutes an element in the robbery, for s. 393 comprehends acts of personal violence committed "after the time of the robbery", and it has long been settled that violence after the taking of property cannot turn the stealing of that property into robbery (see the note to R. v. Gnosil (1824) 1 Car &P 304 (171 ER 1206) ). But the relevant question in the present case is whether the same act of violence can constitute an element in robbery under s. 391 and a circumstance of aggravation under s. 393. The statutory definition of circumstances aggravating the offence of robbery began in 1837 (7 Will. 4 &1 Vict. c. 87) when a number of statutes were passed to restrict the application of the death penalty and to limit the discretion to inflict it by prescribing the aggravating circumstances which were thought to warrant the imposition of that sentence (see Radzinowicz, A History of English Criminal Law (1968), vol. 4, p. 319). Prior to the 1837 Act, robbery of any kind was a capital felony (7 &8 Geo. IV c. 29, s. 6). (at p403)

10. Under the 1837 Act, the death penalty was reserved for cases where the robber "at the Time of or immediately before or immediately after such Robbery shall stab, cut, or wound any Person" (s. 2). And by s. 3, a punishment more severe than the punishment prescribed by s. 6 for simple robbery was provided where the robber at any of the times mentioned should "beat, strike or use any other personal Violence to any Person". (at p404)

11. By a consolidating Act in 1861 the 1837 Act was repealed, and the circumstances of aggravation specified in ss. 2 and 3 of the 1837 Act were combined. Section 43 of the 1861 Act (24 &25 Vict. c. 96) provided, inter alia, that if the robber, at the time of or immediately before or immediately after the robbery, should "wound, beat, strike, or use any other personal Violence to any Person", he should be liable to more severe punishment than that provided for simple robbery. Robbery with violence then ceased to be a capital felony, and there was no further need to distinguish between wounding and other forms of personal violence in the definition of aggravated robbery. With the passing of the Larceny Act 1916 (6 &7 Geo. V. c. 50), wounding was omitted, and personal violence remained as the aggravating factor (s. 23 (1) (b)). (at p404)

12. The relevant provisions of the 1861 consolidating Act were followed in Queensland in 1865 (29 Vict. No. 6, s. 48), and furnished Sir Samuel Griffith with a model for s. 420 of his draft Code which was subsequently enacted in Western Australia as s. 393. The differences between the 1865 Queensland provision, the draft Code and s. 393 of the Western Australia Code are immaterial for present purposes. Wounding is retained as a distinct circumstance of aggravation. (at p404)

13. The legislative history of s. 393 does not suggest that wounding or an act of personal violence cannot constitute both actual violence as an element in a robbery and a circumstance of aggravation which establishes the robbery as an aggravated robbery. It could not have been thought in 1837 that a robber should escape the death penalty if he wounded his victim in order to effect the larceny, though he would have been liable to suffer that penalty if he wounded his victim or another person for some other purpose. It follows that, if wounding or other personal violence within the meaning of that term in s. 393 is used against a victim "in order to obtain the thing stolen or to prevent or to overcome resistance to its being stolen" robbery is thereby committed. It is nonetheless robbery for being aggravated robbery. (at p404)

14. In the present case the blow on the head of Mrs. Scott was capable of supporting a charge of robbery with personal violence; it nevertheless supported and was an element of the charge of robbery alleged in the indictment and admitted by the respondent's plea of guilty. In strictness, the wound caused by the blow was not alleged in the indictment or admitted by the plea, and it was thus an additional fact which might have been relied on as a circumstance of aggravation beyond the actual and personal violence used in the robbery. Whatever may be said of the regard which the sentencing judge ought to have had to the wound, it is impossible to exclude from his consideration the blow which constituted an element of the crime of which the respondent had been convicted and for which the sentence was to be imposed. A sentence ought not be imposed on a footing which is inconsistent with the antecedent conviction, and once the blow was revealed to be the actual violence used in the robbery Judge O'Dea was bound to have regard to it. (at p405)

15. I am unable, in any event, to attribute to the second paragraph of 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 p405)

16. In the procedure for determining whether a person is liable to punishment, and the extent of that liability, the first step before the court is the presentation of the indictment (s. 578). The trial is deemed to begin when the accused person is called upon to plead to the indictment (s. 612), and the liability of the accused person to be punished is determined by the verdict returned upon the indictment (see ss. 653, 654), or by his plea of guilty to an offence of which he may be convicted on that indictment (s. 654) as the case may be. Section 582 is part of Ch. LXII, a chapter concerned with the drawing, signing, presentation and amendment of indictments. The section relates to the form in which an indictment should be framed in order to define the issues which, if not admitted, must be submitted to the verdict of a jury in order to determine whether the accused person is liable to punishment and the extent of that liability. Reliance upon a circumstance of aggravation, in the context of s. 582, means a dependence upon a particular circumstance in order to establish the extent of the accused person's liability to punishment. At the time when s. 582 is to have effect, that is, when the indictment is signed and presented, it is premature for the Crown to intend to rely upon a circumstance as relevant to the exercise of a sentencing discretion; but it is not premature for the Crown formally to state its contention that the accused person's conduct makes him liable to punishment to a greater extent than he would be if he were guilty only of an unaggravated offence. If the accused person by his plea admits what is alleged against him, the extent of his liability is established according to the tenor of his plea. If the accused person does not admit what the indictment alleges against him, his liability to punishment and the extent of that liability must be determined by the verdict returned after a trial upon the indictment. Once an offender's liability to punishment is determined by plea or verdict, the effect of the indictment is spent. I do not construe s. 582 as affecting the imposition of sentence in accordance with the liability so determined. (at p406)

17. 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 sentence 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 KB 441 . Darling J., delivering the Court's judgment, said (1916) 2 KB, 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 SR 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. (at p407)

18. 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. (at p407)

19. In my view, neither s. 582 nor any rule of sentencing practice required artificiality in the sentencing of the respondent. The section had no relevant part to play, and no rule precluded Judge O'Dea from having regard to the blow on Mrs. Scott's head and to the resultant wounding once those facts were admitted. (at p407)

20. It follows that the ground upon which the Court of Criminal Appeal allowed the appeal was errneous and that the application for special leave to appeal should be granted and the appeal allowed. The Court of Criminal Appeal has not considered the respondent's appeal to it except upon the ground canvassed here. The matter should be remitted to the Court of Criminal Appeal to be further dealt with according to law. (at p407)

Orders

Grant special leave to appeal.

Allow the appeal.

Remit the matter to the Court of Criminal Appeal to deal with the grounds of the application not already considered by that Court.