R v Kreutzer - [2013] SASCFC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KREUTZER
[2013] SASCFC 130
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Blue)
28 November 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
The appellant was sentenced in the District Court on multiple offences arising out of serious commercial drug dealing and firearm offending committed in late 2010 and early 2011. The appellant pleaded guilty to those offences. On the same day the appellant was also sentenced for offences committed in 2009 for which he had been placed on a bond, subsequently breached by the commission of the 2010 offences.
The DPP had previously entered a nolle prosequi on one of the counts of possessing methylamphetamine on the information charging the 2011 offences. However, when the Judge sentenced the appellant he overlooked the entry of the nolle prosequi and purported to sentence the appellant on that count as well.
On appeal the DPP accepted that the error made by the Judge necessarily affected the sentence imposed as a whole. That concession called for an exercise by this Court of the powers conferred by s 353(4) of the Criminal Law Consolidation Act 1935 (SA).
Held (allowing the appeal against sentence):
(1) The Court has power under section 354(4) of the Criminal Law Consolidation Act 1935 (SA) to remit the matter for resentencing by the District Court upon being satisfied that the sentence imposed is vitiated by error (Kourakis CJ at [6]-[19], Gray and Blue JJ at [49]-[58]).
(2) Observations on the onus and standard of proof in relation to circumstances said to be aggravating or mitigatory (Kourakis CJ at [21]-[30], Gray and Blue JJ at [59]-[69]).
(3) In the circumstances of this case, the discretion conferred by s 353(4) of the Criminal Law Consolidation Act 1935 (SA) should be exercised to remit the matter to the District Court for resentencing (Kourakis CJ at [37]-[43], Gray and Blue JJ at [70]).
(4) Appeal against sentence allowed; the sentence imposed in the District Court set aside; and the matter remitted to the District Court for resentencing (Kourakis CJ at [1], Gray and Blue JJ at [70]).
Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 6; Criminal Law Consolidation Act 1935 (SA) s 352, s 353, s 353(4); Judiciary Act 1903 (Cth) s 35, s 35A, referred to.
Law v Deed [1970] SASR 374; The Queen v Olbrich (1999) 199 CLR 270; R v Ainsworth (2008) 100 SASR 238; R v Storey [1998] 1 VR 359; R v Lobban (2001) 80 SASR 550, discussed.
Bugmy v The Queen (2013) 87 ALJR 1022; House v The King (1936) 55 CLR 499; R v Horstmann [2010] SASC 103; Liberato v The Queen (1985) 159 CLR 507; Dal v The State of Western Australia (2006) 33 WAR 143; R v Stehbens (1976) 14 SASR 240; R v Bukvic (2010) 107 SASR 405; Weaver v Samuels [1971] SASR 116; Anderson v The Queen (1993) 177 CLR 520; Weininger v The Queen (2003) 212 CLR 629; R v Tran & Tran [2011] SASCFC 153; McGarry v The State of Western Australia (2005) 159 A Crim R 216, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"onus of proof", "onus", "burden of proof", "burden", "standard of proof"

R v KREUTZER
[2013] SASCFC 130
Court of Criminal Appeal: Kourakis CJ, Gray and Blue JJ

KOURAKIS CJ: On 19 June 2013, the Court made the following orders:
1.Appeal against sentence allowed.
2.The sentence imposed in the District Court set aside.
3.The matter remitted to the District Court for resentencing.
I now publish my reasons.
On 6 February 2013 the appellant was sentenced in the District Court on offences arising out of a course of serious commercial drug dealing and firearm offending committed in late 2010 and early 2011. The offences can be summarised as follows. In December 2010, the appellant was found in possession of 2.21 grams of methylamphetamine, a shotgun and ammunition when police searched his home (the 2010 offences). In March 2011, the appellant’s residence was again searched and 1.38 grams of methylamphetamine was found in his bedroom. A sawn off shotgun was also found in his possession (the 2011 offences). The appellant had pleaded guilty to all of those offences.
The appellant was also sentenced for offences committed in 2009 but for which he had been placed on a bond in April 2010. The appellant breached that bond by the commission of the 2010 offences. The appellant admitted the breach.
The information charging the 2011 offences had also charged another offence of possessing methylamphetamine for supply with respect to a different quantity of that drug which was found in the lounge room of the appellant’s home. The Director of Public Prosecutions had entered a nolle prosequi on that charge on 27 February 2012 but, unfortunately, when the Judge came to sentence the appellant he overlooked the entry of the nolle prosequi and purported to sentence the appellant on that count as well.
The Judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) with respect to the 2010 and 2011 offences and the offence which was the subject count on which the nolle prosequi had been entered. Counsel for the Director of Public Prosecutions accepted that the error made by the Judge necessarily affects the sentence as a whole.
The power to remit
The concession that the sentence imposed by the Judge is affected by error calls for an exercise by this Court of the powers conferred by s 353(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA):
353- Determination of appeals in ordinary cases
(4)Subject to subsection (5), on an appeal against sentence, the Full Court must
(a) if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
Section 353(4) of the CLCA took its present form in 2004 on the enactment of the Statutes Amendment (Courts) Amendment Act 2004 (SA). The repealed s 353(4) had provided:
(4)Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal.
Section 353(4) does not authorise the Full Court to interfere with the sentence passed below whenever it has a different view to the sentencing judge about the most appropriate sentence. Neither s 353(4) of the CLCA or its predecessor were intended to abrogate the principles governing the review of sentences established in House v The King.[1] These principles were recently applied in circumstances which demonstrate the importance of maintaining the distinction between a failure to have regard to a matter and a failure to give the matter “proper weight”. Only the former error is sufficient, in itself, to justify or interfere with the Judge’s sentencing discretion. The latter failure is not an error at all, but it may be that the “failure” ultimately results in an out come which is manifestly unreasonable.[2] Only if an error of the kind described in House v The King is shown does the Full Court have the power to quash the sentence passed at first instance. The powers conferred on the Full Court by s 353(4) of the CLCA are premised on its satisfaction that there has been an appellable error in the exercise of the sentencing discretion.
[1] (1936) 55 CLR 499.
[2] Bugmy v The Queen (2013) 87 ALJR 1022.
There is another aspect of s 353(4) CLCA and its predecessor which must be read consistently with the principles of appellate review of the sentencing discretion. It should be noticed that both s 353(4) CLCA and its predecessor provide that the sentence passed below cannot be quashed unless the Full Court “thinks that a different sentence should have been passed”. However, the exercise of the sentencing discretion is vitiated whenever there is a failure to have exclusive regard to material considerations whether or not the ultimate sentence is manifestly unreasonable. That observation is critical to understanding the scope of the power to remit.
If the only error identified by the Full Court is manifest excess or inadequacy (an outcome error[3]), it necessarily follows that it will also think that a different sentence should have been passed. In such a case there will generally be no reason for the Full Court to remit the matter to the court of first instance. If the only error is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error[4]), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, pursuant to s 353(4)(a)(i) of the CLCA, even if the sentence imposed at first instance was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding a process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal in accordance with s 353(4)(b) of the CLCA.
[3] R v Horstmann [2010] SASC 103, [37].
[4] R v Horstmann [2010] SASC 103, [37].
On a literal construction of s 353(4)(a)(ii) of the CLCA, the Full Court can only exercise the power to remit if it is in a position to anticipate that the result of a resentencing, completed without error, will be a different sentence to that which was imposed at first instance. However, if the Full Court is in a position to confidently predict that result, it will almost always be more convenient for it to proceed to resentence itself pursuant to s 353(4)(a)(i) and the power to remit will not need to be exercised at all.
So what is the Full Court to do if it is satisfied that there has been a process error but practical considerations suggest that resentencing is more appropriately managed in the sentencing court? For example, the Full Court may take the view that the submissions as to the appropriate sentence could more conveniently be heard in the sentencing court because the parties intend to adduce further material which, in the interests of justice, should be received. Yet again, as in this case, there may be a dispute over material facts which have not been satisfactorily resolved by findings of the sentencing judge. Quite apart from the inefficiency of having three judges preside over a sentencing hearing which is better managed by a single judge, a hearing before the Full Court would deny a defendant the ordinary avenues for appellate review of the determination of a factual dispute and the resulting sentence.
On its face, the purpose of the power conferred by s 353(4)(a)(ii) of the CLCA is to allow the resentencing to be remitted to the sentencing court when it is more convenient to do so for the reasons of the kind I have just canvassed. The only cases I can conceive in which the power given by s 353(4)(a)(ii), read literally, would be exercised are those in which the Full Court can confidently predict that in whatever way any unresolved factual dispute is determined a different sentence will be imposed. It is difficult to conceive of the kinds of cases in which that position will be reached. In fact, that position will be reached rarely, if at all.
Section 353(4) of the CLCA was amended by the Statutes Amendment (Courts) Bill in 2004. The clause relevant to the amendment of s 353(4) was not introduced until the Bill reached the Legislative Council. In that House, the Bill was amended to insert two new clauses, one of which amended s 353 of the CLCA. In introducing that clause the Minister for Industry, Trade and Regional Development said:[5]
Speaking now in relation to new clause 4B, section 353(4) of the Criminal Law Consolidation Act provides:
On an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed by the sentencing court, quash the sentence and pass such other sentence in substitution as it thinks ought to have been passed.
His Honour, the Chief Justice, has raised a potential problem with section 353(4). On one reading of this provision, it requires the appeal court, when it allows an appeal, to pass the sentence itself but does not permit it to remit the matter for resentencing to the court from which the appeal was brought. Although, in many cases, the appeal court can and does impose a substitute sentence, His Honour advises that there are cases where, for one reason or another, it is either inconvenient or inappropriate to do so. This amendment clarifies the appeal court’s power to quash the sentence passed at trial and either substitute its own sentence or remit the matter to the court of trial for resentencing. I commend the amendments to the council.
[5] South Australia, Parliamentary Debates, Legislative Council, 27 May 2004, 1642 (P Holloway, Minister for Industry, Trade & Commerce).
The reported observations of the former Chief Justice coincide with my view of the mischief to which the amendment was addressed. A literal construction of s 353(4)(a)(ii) would therefore deny the very purpose and utility of the conferral of a power to remit.
Nonetheless, in R v Ainsworth,[6] White J (with whom Doyle CJ agreed) gave s 353(4) of the CLCA a literal construction.[7] White J surveyed a number of interstate decisions on the power of courts of criminal appeal on appeals against sentence. Of those decisions, only one, Dal v The State of Western Australia (Dal),[8] was a decision on an appeal provision which included a power to remit. The Western Australian provision is similar in form to s 353(4) of the CLCA. In Dal, the Western Australian Court of Appeal quashed the sentenced imposed at first instance because the sentencing Judge had failed to make material findings of fact and remitted the matter for resentence without first deciding that a different sentence should have been imposed.
[6] (2008) 100 SASR 238.
[7] (2008) 100 SASR 238, [75].
[8] (2006) 33 WAR 143.
The other cases cited by White J deal with the very different question of whether the demonstration of sentencing error is enough, in itself, to require the appeal court to impose a different sentence. Those cases are authority for the proposition that the demonstration of error by the sentencing Judge will not, in itself, result in a different sentence being passed unless the appellate court is of the opinion that, on the material before it, considered in accordance with sentencing principle, a different sentence should be imposed. That is the proposition I articulated in [10] above. The making of a process error does not itself require an adjustment of the sentence to that which the sentencing Judge himself or herself might have imposed but for the error. The appeal court must itself determine the sentence it would impose and if that happens to coincide with the result of the sentencing process at first instance the appeal must be dismissed. In short, a sentencing Judge might well have arrived at the right result but by a wrong process. The decisions cited by White J are not authorities on the conditions which enliven the more recently enacted statutory power to remit. With respect, I prefer the understanding of the interstate authorities expressed by Layton J in Ainsworth and her Honour’s construction of s 353(4) of the CLCA.[9]
[9] (2008) 100 SASR 238, [136].
In Ainsworth, White J, with the concurrence of Doyle CJ, found that the Judge’s reasons were inadequate. It was on that finding that the question of remission arose. However, White J also found that the order of indefinite detention, against which the appeal had been brought, should not have been imposed in any event and quashed it. Justice White’s observations about the conditions on which the power to remit is premised were therefore obiter. I observe in passing that seldom should the failure of a sentencing Judge to give adequate reasons be a reason to remit unless the inadequacy lies in failing to resolve all of the material factual disputes. If all material factual issues have been properly resolved, the failure of the sentencing Judge to adequately explain how the sentence was arrived at, from his or her comprehensive findings of fact, will rarely prevent the Full Court from determining the proper sentence on those facts, and explaining its reasons for doing so.
I would hold that, on the proper construction of s 353(4), this Court may exercise the power to remit a matter for sentence pursuant to s 353(4)(a)(ii) of the CLCA without finally determining the sentence which should be imposed. That result can be reached by either of two alternative approaches. The first is to construe the phrase “if it thinks that a different sentence should have been passed” to mean “if there is reason to think that a different sentence should have been passed”. It is then open to take the position that whenever the sentencing discretion has miscarried by the making of a process error there is reason to think that a different sentence should have been passed without finally determining what the different sentence should have been. Alternatively, a construction can be adopted which limits the application of the preamble to s 353(4)(a) of the CLCA to subparagraph (i).
In this case, a process error was established and indeed conceded. The question for this Court was whether it should embark on resentencing or whether it should remit the matter to the District Court. Before explaining why I joined in the order remitting the matter, it is necessary to discuss in some detail the principles governing fact finding in sentencing matters.
Fact finding in sentencing
The principles governing the identification of a proper factual basis for sentencing purposes have been refined significantly in recent times. In Law v Deed,[10] Bray CJ identified the primary principle to be the fundamental right of a defendant in a sentencing hearing “to have nothing beyond the essential legal ingredients of the crime assumed against him if it is denied by him, unless and until it is proved to the satisfaction of the Court by sworn evidence subject to cross-examination” (emphasis added). In short, the prosecution must prove any circumstance, the existence of which would tilt the sentencing balance towards a more severe sentence, beyond reasonable doubt.
[10] [1970] SASR 374.
Bray CJ thought that the prosecution had a similar onus to disprove mitigating circumstances:[11]
The right of the defendant must be no less with regard to circumstances of mitigation such as those claimed in the present case. Here, however, there is no possibility normally of comparing sworn statements with sworn statements or unsworn statements with unsworn statements. The facts normally are within the knowledge of the defendant alone. Nevertheless, the Courts must “within the bounds of reasonable possibility” accept the defendant’s version.
[11] Law v Deed [1970] SASR 374, 378.

The proposition expressed in that passage can also be expressed as a right of the defendant to have circumstances, the existence of which would tilt the sentencing balance towards a more lenient sentence, assumed in his favour unless disproved beyond reasonable doubt by the prosecution. The proposition so expressed can only be justified, as an emanation of the fundamental right of the accused to have nothing assumed against him, if a sentencing court is required to resolve all disputed circumstances before it proceeds to sentence. As recent authorities have shown, that is not the position.
The decision of this Court in Law v Deed was considered by the High Court in Anderson v The Queen,[12] an appeal from a decision of this Court. Brennan and Dawson JJ, citing Law v Deed[13] and R v Stehbens[14], observed that it had been the sentencing practise in South Australia for the prosecution to bear the onus of proving contested facts unfavourable to an offender which had not been established by the verdict or plea of guilty beyond reasonable doubt. Their Honours reserved their view as to whether that practice applies to facts which, though not amounting to circumstances of aggravation, nonetheless, increase the liability to punishment. As will be seen, that question has been answered in the affirmative by the Victorian Supreme Court in R v Storey[15] and by the High Court in The Queen v Olbrich.[16]
[12] (1993) 177 CLR 520.
[13] [1970] SASR 374, 377-379.
[14] (1976) 14 SASR 240, 245-246.
[15] [1998] 1 VR 359, 369.
[16] (1999) 199 CLR 270.
In Anderson, Deane, Toohey and Gaudron JJ also accepted the principle established in Law v Deed that the prosecution must prove a circumstance of aggravation beyond reasonable doubt and explained, that if it failed to do so, that the court must sentence on the basis that the circumstance of aggravation does not exist. Their Honours also appear to approve the observations of Bray CJ in Law v Deed as to circumstances of mitigation in the following passage:[17]
Nonetheless, if the Crown failed to discharge the onus of establishing commercial purpose as a circumstance of aggravation, the appellant was entitled to be sentenced on the basis that there was a reasonable possibility that he had had no such purpose. In the circumstances of the present case, that would have meant that there was a reasonable possibility that the facts were such that the appellant’s offence had been no more than a “simple cannabis offence”. If that stage had been reached, the ordinary “duty of the [sentencing] Judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused”, would have required that the appellant’s sentence be determined on the basis that his offence had been a “simple cannabis offence” for which the s. 45a expiation procedure, involving an expiation fee of $150, would have been appropriate.
[17] (1993) 177 CLR 520, 539-540.
Given the binary nature of the dispute in Anderson, the purpose of possession of the cannabis was either commercial or personal consumption, the practical result of the prosecution’s failure to prove the former is that the sentence would for all practical purposes be much the same as if the defendant had proved the latter. Nonetheless, as the more recent authorities show, there is a distinction in principle on the question of the persuasive onus between mitigating and aggravating circumstances.
In The Queen v Olbrich, Gleeson CJ, Gaudron, Hayne and Callinan JJ explained the different sentencing onus and standard of proof applicable to matters of aggravation and mitigation in the following way: [18]
Courts of criminal appeal in Australia have considered the subject of fact finding for sentencing many times in the last thirty years. Not all of the questions that have been examined in those decisions must be considered now. For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.
Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a fifty-eight year old first offender who pleaded guilty to importing more than 1.1 kg of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation “principal” could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was “a courier”. The respondent bore the burden of proving this fact. The judge was not persuaded of it.
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey — that a sentencing judge:
“may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”
[18] (1999) 199 CLR 270, [24]-[27].
It will have been observed that the decision of the High Court in Olbrich modifies, in an important respect, the sentencing onus of proof laid out in Law v Deed.[19] The High Court in Olbrich denied defendants the benefit of any reasonable doubt about the existence of circumstances which would operate favourably on a defendant for the purposes of sentencing. The defendant must prove those circumstances on the balance of probabilities unless they are accepted by the prosecution and the Court.
[19] [1970] SASR 374.
Shortly after the judgment in Olbrich was delivered, this Court considered the effect of that decision on the earlier authorities of this Court. In R v Lobban,[20] Martin J (with whom Bleby and Mullighan JJ agreed) gave an exposition of those principles with which I respectfully agree and now set out at some length:[21]
[20] (2001) 80 SASR 550.
[21] (2001) 80 SASR 550, [28]-[32].
In my opinion, the effect of Olbrich was to modify the principle by which Bray CJ was guided with the consequence that the approach adopted by Bray CJ is not the correct approach. In Olbrich, the majority specifically rejected the proposition that if an offender fails to satisfy a judge of some matter urged in mitigation, the judge is, nevertheless, obliged to sentence the offender on that basis unless the prosecution proves the contrary beyond reasonable doubt. Their Honours adopted the majority view in R v Storey [1998] 1 VR 359 at 369 …
In Storey, the majority explained that a reference to facts “adverse to the interests of the accused” is not limited to circumstances which “aggravate the offence”. That expression extends to any circumstance which the judge proposes to take into account adversely to the interests of the accused in the sense that the circumstance is “likely to result in a more severe sentence than would otherwise be the case” (at 369). It follows that reference to a circumstance to be taken into account in favour of the offender is a reference to a circumstance that is likely to result in a less severe sentence than would otherwise be the case. This approach was approved in Olbrich (at 281).
As was pointed out in Storey, descriptions of circumstances as aggravating or mitigating are useful shorthand expressions, but they are no more than shorthand expressions. Their Honours observed that factors cannot be characterised as always aggravating or always mitigating. The sentencing judge must ask what the tendency of the circumstance is in the particular case under consideration. I agree with the following explanation (at 371):
“The test is not what tag can or should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required: if it is a use in favour of the offender then proof on the balance of probabilities will suffice.”
I also agree with the following remarks in Storey (at 372) as to the meaning of “proof of disputed facts”:
“We have spoken of disputed “facts”. As was pointed out in R v Ali [[1996] 2 VR 49 at 60-61] there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order for the jury to conclude that the offence is proved, [Shepherd v The Queen (1990) 170 CLR 573], so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard — not each of the individual facts which is said to bear upon the issue.”
Finally, it is important to bear in mind that not infrequently a sentencing judge will not be persuaded of a particular fact. If a fact is advanced in favour of an offender but a judge is not persuaded of the existence of the fact, the absence of that fact does not prove the converse fact adverse to the offender. It simply means that the offender does not get the benefit of the fact that was advanced in the offender’s favour. Similarly, if a fact is advanced adverse to the interests of the accused but is not proven beyond reasonable doubt by the Crown, it simply means that the adverse fact does not exist for the purposes of sentencing. As King CJ pointed out in R v Calabria (1982) 31 SASR 423 at 437, if a fact such as the degree of participation in the crime is unknown, speculation is futile and unjustified. The offender is to be punished for the particular crime committed. His Honour pointed out that if the degree of participation were known, it might operate in aggravation or extenuation of the degree of guilt. If the degree of participation is not known, it can operate neither as aggravation nor extenuation.
In Weininger v The Queen,[22] the High Court provided further explication of its decision in Olbrich but, in my respectful opinion, did not modify the principles therein stated in a way which casts any doubt on the understanding and application of those principles in Lobban. It is appropriate to cite, again at length, from the reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ in Weininger:[23]
… attention to questions of onus and standard of proof may distract attention from another important aspect of the decision in Olbrich. Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender. That is not so. As was recognised in Olbrich, some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.
[The nature and circumstances of the offending] are to be taken into account only to the extent that they are relevant and known to the court. The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.
To frame the relevant question in terms of the onus and standard of proof may also suggest that the only material which may be treated as being “known to the court”, and on which the judge may act in sentencing an offender, is material revealed by the plea or verdict of guilty, admission by the offender, or evidence received on the sentencing hearing. The use of the phrase “known to the court”, rather than “proved in evidence”, or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase “known to the court” should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.
In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple. …
As was pointed out in Storey, it is important to avoid introducing “excessive subtlety and refinement” to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money.
(Underlining added and citations omitted)
[22] (2003) 212 CLR 629.
[23] (2003) 212 CLR 629 at [19]-[24].
More recently this question was considered by this Court in R v Bukvic.[24] White J summarised the position in this way:[25]
The judge’s consideration of the parties’ submissions concerning the appellant’s previous conduct required the application of two important sentencing principles. The first is that the prosecution has the onus of establishing any aggravating circumstance which it alleges and offenders have the onus of establishing any mitigatory matter which they allege. That does not mean that all matters put before a judge are to be characterised as favourable or adverse, or as aggravating or mitigatory. Some matters may be properly known to, and relied upon by, a sentencing judge which fit into neither category.
The second principle is that an offence is not to be regarded as aggravated by some conduct which would constitute a different offence for which the offender has been neither charged nor convicted. If the prosecution does wish to rely on the aggravating factor in those circumstances, it must bring a charge of the separate offence, and have the accused tried on that charge. In this way the second principle qualifies the operation of the first.
(Citations omitted)
[24] (2010) 107 SASR 405.
[25] (2010) 107 SASR 405, [37]-[38].
The decisions in Olbrich, Lobban, Storey, and Weininger support the following approach to fixing the factual matrix for sentencing purposes:
(1)Circumstances which operate adversely to a defendant on the one hand, or favourably on the other, should first be identified, bearing in mind that not all relevant circumstances can be so categorised. Even though there exists authoritative guidance about many commonly recurring circumstances, the categories are not closed.
(2)In the absence of agreement and acceptance by the court, the prosecution must formally prove circumstances of aggravation beyond reasonable doubt and the defendant must formally prove matters in mitigation on the balance of probabilities.
(3)If a circumstance of aggravation or mitigation is not proved by the party who carries the onus to do so, the converse is not thereby proved and the court must proceed to sentence not knowing whether the circumstance, or the converse, is true.
(4)A sentencing court may inform itself of matters which are neither circumstances of aggravation nor mitigation as it sees fit in accordance with historical sentencing practice and any applicable statutory discretions such as s 6 of the Criminal Law (Sentencing) Act 1988 (SA).
It is useful to give examples of some circumstances falling within the fourth proposition. The personal circumstances of the defendant such as the degree of his or her remorse, his or her psychological and social functioning and the prospects for rehabilitation involve a “synthesis of competing features” based on an understanding of the “complexity of the human condition” which are not susceptible to formal proof.[26] Similarly, matters such as the prevalence of offending of the kind for which the sentence is to be imposed, its effect on the direct victims of the offending and the community more generally, and the degree of general deterrence which should be reflected in the penalty, are not capable of strict proof. That is not to say that disputes calling for, and capable of formal proof, might not also arise when assessing considerations of the kind just mentioned. A claim by a defendant to have engaged in certain voluntary charitable work might be disputed. On the other side, the extent of a victim’s injuries might be disputed and, if material, need to be resolved.
[26] Weininger v The Queen (2003) 212 CLR 629, [24].

It is also necessary to say a little more about proposition (3) above by reference to the actual decision in Weininger. Weininger had been sentenced for knowingly importing drugs into Australia. The issue on the appeal was the sentencing Judge’s approach to Weininger’s prior criminal history. It was common ground that he had not previously been convicted of a criminal offence. However, there was strong evidence before the Judge that he had been engaged in earlier importations and money laundering. The Judge remarked that the absence of prior convictions “must receive some recognition” but that the evidence of earlier participation in illegal importation meant that Weininger could not be “treated as a first offender with the attendant leniency that that status usually attracts”.
The majority in Weininger held that the Judge’s reference to a “first offender” did not imply that the Judge had positively found that Weininger had committed the earlier offences suggested by the evidence. The majority read the Judge’s remarks as an explanation for her Honour’s decision not to treat the lack of prior convictions as demonstrating “absence of prior criminal behaviour”. The majority concluded that the Judge, not being persuaded that the appellant “was probably a person who had not previously engaged in drug importation”, treated “what was known of the appellant’s character and antecedents as neither working in his favour … nor against him”. I understand the words “working in his favour” to mean “tending to decrease the sentence” and the expression “against him” to mean “tending to increase the sentence”.[27] Because the Judge could not “know” that Weininger previously had been of good character, a lower sentence could not be imposed based on a positive finding to that effect and on the implications such a finding would have carried for his future rehabilitation.
[27] Weininger v The Queen (2003) 212 CLR 629, [29].
The operation of these principles is perhaps best understood by imagining a case in which very little is known about the circumstances of the offending and applying the principles established in Olbrich as more circumstances are postulated. If all that is known after a plea to commercial possession of cannabis is that a commercial quantity was found in a car driven by the appellant, the court must fix an appropriate sentence as best it can, but, given the great uncertainty over the offender’s culpability, the sentence might properly fall anywhere within a very wide range. A defendant who contended that his possession was fleeting and that he was holding the cannabis for a friend for no reward, would carry the onus of proving that mitigatory circumstance and, if successful, the proper range for the sentence would contract to the lower end of, if not below, the wide range which was available when nothing more than his possession was known to the court. Of course a failure to prove that the possession was fleeting would not prove its converse; it would mean that the court must once again sentence as if nothing more was known. Let it now be assumed that the prosecution contended that the defendant was to transport the cannabis interstate for an organised drug syndicate. If that were proved beyond reasonable doubt, the proper range of the sentence would move towards, and perhaps beyond, the more severe end of the range previously contemplated. In more complex cases there is likely to be a number of often competing mitigating and aggravating circumstances which, if resolved, will contract the range, moving it favourably, or adversely, to the defendant as the case may be. The determination of the proper sentence will also be affected by matters such as those mentioned in [33] above which are not susceptible to proof.
Good reason to remit
The appellant fell to be sentenced for a complex set of offences. Ordinarily that consideration would not be decisive of the question whether to remit the matter or not. Of greater importance are the disputed factual contentions which the Judge failed to address. The appellant claimed that he found both the shotgun, which was seized by police in 2010, and the sawn off shotgun which was seized in 2011, in a disused shed on a farming property whilst prospecting on Yorke Peninsula. The appellant contended before the Judge that he kept the firearms for self-defence, a purpose necessitated by his involvement as a drug addict in the criminal underworld. However, the appellant had given conflicting accounts of the purpose of his possession of the sawn off shotgun. He told the psychologist, Dr White, an improbable story that he used the gun for rabbit shooting.
Counsel for the Director of Public Prosecutions alleged that the appellant possessed the guns as part of his commercial drug trading activities. That is a circumstance of aggravation which the Director would, in accordance with Olbrich, carry the onus of proving beyond reasonable doubt. Counsel for the Director of Public Prosecutions contended that an inference could be drawn beyond reasonable doubt that that was the appellant’s purpose from the fact that he was found on both occasions in the possession of a shotgun and, in particular, on the last occasion a sawn off shotgun.
On the other hand, the appellant’s account, if accepted, would mitigate the offending. The appellant would therefore carry the onus of proving his account of finding the guns and his reasons for keeping them on the balance of probabilities.[28]
[28] The Queen v Olbrich (1999) 199 CLR 270, [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Of course, it may not be possible to resolve the dispute one way or another if both parties fail to discharge their respective burdens. In that event, the appellant can only be sentenced on the bare fact of the possession of the gun in the context of his possession of drugs.
The disputed factual question is likely to have a substantial bearing on the sentence. The possession of any firearm, and in particular the unlicensed possession of a sawn off shotgun, for the purposes of facilitating commercial drug dealing is a seriously aggravating circumstance. The appellant and the Director of Public Prosecutions should be given an opportunity to go into evidence on the issue. That is best done in the District Court.
Another important consideration is that if this Court were to determine the disputed questions, and ultimately the sentence, the appellant would lose the benefit of an appeal pursuant to s 353 of the CLCA. Appeals from the Full Court of this Court to the High Court lie only by a grant of special permission.[29] The High Court is not a court of criminal appeal.[30]
[29] Judiciary Act 1903 (Cth), s 35 and s 35A.
[30] Liberato v The Queen (1985) 159 CLR 507, 509.
For the above reasons, I joined in the decision of the Court to exercise the discretion conferred by s 353(4) of the CLCA to remit the matter to the District Court.
GRAY and BLUE JJ.
This is an appeal against sentence.
On 19 June 2013, the Court allowed the appeal, set aside the sentence imposed in the District Court and remitted the defendant and appellant, Horst Kreutzer, to be resentenced. We now publish our reasons for joining in the orders of the Court.
On 6 February 2013, the defendant was sentenced in the District Court following his pleas of guilty to drug and firearm offences committed in December 2010 and March 2011. On the hearing of the appeal, the Director of Public Prosecutions accepted that an error had been made by the sentencing Judge that necessarily affected the sentence imposed. In light of this concession, the Court determined to allow the appeal and set aside the sentence imposed by the Judge.
On the hearing of the appeal, it was also apparent that there was a dispute of fact relating to the defendant’s reason to be in possession of the firearms on the two occasions. On the Director’s case, the guns were possessed as part of the defendant’s commercial drug trafficking activities. This was denied by the defendant, who asserted that he had possession of the firearms for the purpose of rabbit shooting. In these circumstances, the Director was asserting a circumstance of aggravation and the defendant was asserting a circumstance of mitigation. It is against this background that the questions arose as to the respective onuses of proof and as to whether it was appropriate for this Court to resolve the disputed facts, or to remit the matter to resentencing. As noted above, the Court resolved to remit the matter to resentencing.
We adopt the detailed history of the matter and the factual background as set out in the reasons for judgment of Kourakis CJ.
Power to remit
Section 352 of the Criminal Law Consolidation Act 1935 (SA) confers, subject to a grant of permission, a right of appeal to this Court against sentence upon the defendant and the Director.
On an appeal against sentence, this Court has power to allow the appeal and quash the sentence if the sentence is affected by demonstrated error of process[31] or as to the outcome.[32]
[31] For example, a wrong principle, taking into account irrelevant matters, failing to take into account relevant matters or mistaking the facts. House v The King (1936) 55 CLR 499, 504-505 per Dixon, Evatt and McTiernan JJ.
[32] For example, manifestly excessive or manifestly inadequate. House v The King (1936) 55 CLR 499, 504-505 per Dixon, Evatt and McTiernan JJ.
Section 353(4) of the Criminal Law Consolidation Act identifies the orders which may be made by the Court on an appeal against sentence. Section 353(4) provides:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
If the Court allows the appeal and quashes the sentence passed at trial, the defendant falls to be resentenced. In that event, section 353(4)(a) empowers the Court either to resentence itself or remit the matter to the court of trial for resentencing. Otherwise, the Court is to dismiss the appeal under section 353(4)(b).
The Court’s power to resentence or remit the matter for resentencing is conditioned upon the introductory words of section 353(4)(a) “if it thinks that a different sentence should have been passed”. The reference to thinking that a different sentence should have been passed is ambiguous. It might mean that the Court is satisfied that the sentence which was passed is vitiated to such an extent that the sentencing discretion is required to be exercised afresh. On this construction, the conclusion that a different sentence should have been passed is reached before– and ex hypothesi without knowing the outcome of – the fresh exercise of sentencing discretion. Alternatively, the introductory words might mean that the Court has already proceeded to exercise the sentencing discretion afresh and determined an appropriate sentence which differs from the sentence which was passed. On the former construction, it is possible that the fresh exercise of the sentencing discretion might ultimately result in a sentence in the same terms as the original sentence, but that would be coincidental. On the latter construction, the Court would be required to exercise the resentencing discretion and determine whether the fresh sentence differs in terms from the original sentence before it is empowered to either exercise the resentencing discretion or remit the matter for resentencing.
Upon analysis, the latter construction raises particular difficulties. It is illogical for the Court to be required first to exercise the sentencing discretion afresh before determining whether or not to exercise the sentencing discretion or remit the matter to the court of trial for resentencing. Moreover, that construction would result, in a practical sense, in matters not being remitted for resentencing because there would be no point in doing so once the Court has already determined the appropriate sentence itself.
Section 353(4)(a) should, in our view, be construed so as to enliven this Court’s power to resentence or remit for resentencing upon its being satisfied that the original sentence is vitiated and that the defendant should be resentenced.
Sections 31(3)-(6) of the Criminal Appeals Act 2004 (WA) are in substantially the same terms, although in different form, to section 353(4) of the Criminal Law Consolidation Act. In McGarry[33] and Dal,[34] the Western Australian Court of Appeal adopted a construction of section 31 of the Criminal Appeals Act which empowered the Court to remit the matter for resentencing without first determining the outcome of a fresh sentencing discretion.
[33] McGarry v The State of Western Australia (2005) 159 A Crim R 216, [108] per Wheeler JA (Roberts-Smith and McClure JJA agreeing).
[34] Dal v The State of Western Australia (2006) WAR 143, [59] per Buss JA (Roberts-Smith and McClure JJA agreeing).
In Ainsworth,[35] the defendant appealed against an order under section 23 of the Criminal Law (Sentencing) Act 1988 (SA) that he be detained in custody indefinitely on the ground, inter alia, that the Judge’s reasons for judgment were inadequate. This Court considered that the reasons were inadequate. White J, with whom Doyle CJ agreed, concluded, on the fresh exercise of the sentencing discretion, that an order for indefinite detention should not be made. Layton J agreed that the order should be quashed but would have remitted the question of whether an order for indefinite detention should be made to the court of trial. In the course of his reasons, White J referred to authorities of this Court that a failure to give adequate reasons does not of itself constitute a sufficient ground for the setting aside of a sentence.[36] White J expressed the view that, in those circumstances, this Court did not have power to remit for resentencing under section 353(4)(a)(ii) unless and until it first determined whether an order for detention ought to be made.[37] However, as White J considered that an order of indefinite detention should not have been imposed in any event, his observations about the power to remit were obiter. They were in any event confined to circumstances in which the ground of appeal was inadequate reasons and the issue was whether an order of indefinite detention ought to have been made.
[35] R v Ainsworth (2008) 100 SASR 238.
[36] R v Ainsworth (2008) 100 SASR 238, [67] referring to Shrubsole v Rodriguez (1978) 18 SASR 233, 236 per Wells J; R v Capalbo (2005) 238 LSJS 245, [98] per White J; and O, C v Police [2007] SASC 346, [27] per Layton J.
[37] R v Ainsworth (2008) 100 SASR 238, [68]-[75].
The decision of this Court in Ainsworth[38] is therefore no impediment to this Court deciding that, on the proper construction of section 353(4), the Court’s power to resentence or remit for resentencing is enlivened upon its being satisfied that the sentence below is vitiated by error and should be set aside, without first determining what is an appropriate exercise of the sentencing discretion.
[38] R v Ainsworth (2008) 100 SASR 238.
Matters of aggravation and mitigation
In Australia there has been a sustained debate about the approach to be taken to matters of aggravation and mitigation. The different approaches may be illustrated by comparing the positions taken in South Australia and Victoria. In South Australia in the 1970s, Bray CJ took the view that the prosecution had to prove beyond reasonable doubt any contested aggravating matters and, as a consequence, to disprove any directly contradictory matters raised by the defence. Bray CJ articulated his views in a series of cases including Weaver v Samuels[39] and Law v Deed.[40] For example, in Weaver, Bray CJ observed:[41]
… The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of guilt or innocence, in the absence of any statutory provision to the contrary. The plea of guilty admits no more than the bare legal ingredients of the crime. Any dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence.
In Anderson[42] the High Court agreed that the above principles remained good law.
[39] Weaver v Samuels [1971] SASR 116.
[40] Law v Deed [1970] SASR 374.
[41] Weaver v Samuels [1971] SASR 116, 119-120.
[42] Anderson v The Queen (1993) 177 CLR 520.
In 1998, the Victorian Supreme Court, by majority, took a different view in Storey.[43] Winneke P, Brooking JA, Hayne JA and Southwell AJA determined that if there was a dispute about a particular fact, it was the proposed use to be made of that fact that was important. If the fact was adverse to the offender, then the prosecution had to establish that fact beyond reasonable doubt. However, they rejected the notion that the prosecution must disprove any mitigating factors in dispute: [44]
… [T]o require the Crown to disprove factors which go in mitigation leads to unacceptable, if not absurd, results. If it is alleged that the offender committed the crime because he or she was a drug addict and it is for the Crown to prove, beyond reasonable doubt, that that is not so, what use is the judge to make of the conclusion if, not being persuaded that the offender probably was a drug addict he or she is, nevertheless, not persuaded that the matter is free from reasonable doubt? Is the judge then to sentence the offender on the basis that the assertion (of which the judge is unpersuaded on the balance of probabilities) is true? That is, is the judge to sentence the offender on the basis of some assumed "facts" of which the judge is not persuaded? …
…
… [T]he judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt but if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
[43] R v Storey [1998] 1 VR 359.
[44] R v Storey [1998] 1 VR 359, 369-71.
The different approaches taken by the State Supreme Courts were resolved in favour of Storey[45] by the High Court in the decision of Olbrich,[46] later confirmed in the decision of Weininger.[47] In these two decisions the High Court has authoritatively determined the approach to be taken by a sentencing judge when considering matters of aggravation and mitigation. It is to be noted that the decisions of Bray CJ in Weaver[48] and Law[49] had, in any event, been overtaken by the enactment of the Criminal Law (Sentencing) Act.
[45] R v Storey [1998] 1 VR 359.
[46] R v Olbrich (1999) 199 CLR 270.
[47] Weininger v The Queen (2003) 212 CLR 629.
[48] Weaver v Samuels [1971] SASR 116.
[49] Law v Deed [1970] SASR 374.
A sentencing court should begin its consideration with section 6 of the Sentencing Act, which provides:
For the purpose of determining sentence, a court—
(a)     is not bound by the rules of evidence; and
(b)     may inform itself on matters relevant to the determination as it thinks fit; and
(c)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
It is also necessary for the court, at the outset, to have regard to the terms of section 10(1) of the Sentencing Act, which provides:
In determining the sentence for an offence, a court must have regard to such of the following factors and principles as may be relevant:
(a)     the circumstances of the offence;
(b)     other offences (if any) that are to be taken into account;
(c)     if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d)     the personal circumstances of any victim of the offence;
(e)     any injury, loss or damage resulting from the offence;
(f)    if the offence was committed by an adult in circumstances where the offending conduct was seen or heard by a child (other than the victim (if any) of the offence or another offender)—those circumstances;
(g)     the degree to which the defendant has shown contrition for the offence (including by taking action to make reparation for any injury, loss or damage resulting from the offence);
(h)     the degree to which the defendant has cooperated in the investigation of the offence;
(i)    the deterrent effect any sentence under consideration may have on the defendant or other persons;
(j)    the need to ensure that the defendant is adequately punished for the offence;
(k)     if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence—the nature and extent of the forfeiture;
(l)    the character, antecedents, age, means and physical or mental condition of the defendant;
(m)    the rehabilitation of the defendant;
(n)     the probable effect any sentence under consideration would have on dependants of the defendant;
(o)     any other relevant matter.

The appellant and defendant in Weininger[50] pleaded guilty to one count each of the federal offences of being knowingly concerned in the importation into Australia of prohibited goods, and conspiring to commit an offence of money laundering. He also pleaded guilty to the State offence of conspiring with others to supply a commercial quantity of cocaine. The defendant was sentenced to imprisonment for 18 years for being knowingly concerned in the importation of cocaine, 10 years for the offence of conspiracy to launder money and ten years for conspiring with others to supply a commercial quantity of cocaine – each of the latter sentences was to commence on the same date as the first sentence. The defendant appealed against sentence.
[50] Weininger v The Queen (2003) 212 CLR 629.
A statement of facts was tendered at the sentencing hearing by the prosecution without objection. The material tendered revealed that the defendant had no prior convictions. Evidence that the defendant had said to two people, in effect, that he had not previously engaged in conduct of the kind to which he pleaded guilty was tendered to the Judge. In contrast, earlier assertions made by the defendant regarding his continued involvement in a cocaine importation syndicate and difficulties of the syndicate with an established method of cocaine importation were recorded in the statement.
On appeal to the Court of Criminal Appeal, the defendant argued, inter alia, that the sentencing Judge erred in sentencing the defendant for offences with which he had not been charged and convicted. The Court of Criminal Appeal, by majority, dismissed the appeal. The defendant appealed to the High Court.
In dismissing the appeal and concluding that the sentencing Judge “treated what was known of the [defendant’s] character and antecedents as neither working in his favour nor against him”,[51] the observations of the Court in Olbrich[52] were referred to and adopted by the plurality in Weininger:[53]
In R v Olbrich, the Court examined a number of questions relating to fact finding in sentencing, usually discussed under the rubric of the onus and standard of proof in sentencing. As the joint reasons point out, "[r]eferences to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings". The Court adopted what was said by the majority in the Court of Appeal of Victoria, in R v Storey, that a sentencing judge:
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
[Footnotes omitted.]
[51] Weininger v The Queen (2003) 212 CLR 629, [29].
[52] R v Olbrich (1999) 199 CLR 270.
[53] Weininger v The Queen (2003) 212 CLR 629, [18].
The plurality in Weininger pointed out that undue attention to issues of onus and the standard of proof may distract from other important aspects of sentencing:[54]
To frame the relevant question in terms of the onus and standard of proof may also suggest that the only material which may be treated as being "known to the court", and on which the judge may act in sentencing an offender, is material revealed by the plea or verdict of guilty, admission by the offender, or evidence received on the sentencing hearing. The use of the phrase "known to the court", rather than "proved in evidence", or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.
In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.
[54] Weininger v The Queen (2003) 212 CLR 629, [21]-[23].
The plurality also addressed the approach to sentencing and affirmed the following observations of the Victorian Supreme Court of Appeal in Storey:[55]
As was pointed out in Storey, it is important to avoid introducing "excessive subtlety and refinement" to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money.
[Footnote omitted.]
[55] Weininger v The Queen (2003) 212 CLR 629, [24].
In Weininger, the plurality discussed the significance of the phrase “as are relevant and known to the court” appearing in section 16A(2) of the Crimes Act 1914 (Cth):[56]
The phrase "known to the court" which qualifies the list of "matters" in pars (a)-(p) of s 16A(2) which the court "must take into account" presents the evidentiary and other procedural questions upon which this appeal turns. By what means and at whose instigation are these "matters" to be made known? Are issues of fact to be tendered for resolution by the judicial officer who constitutes "the court" for this purpose? If so, do questions of onus of "proof" arise? Are there here the distinctions found elsewhere between ultimate and evidentiary burdens? To what degree, if at all, is the procedure inquisitorial rather than adversarial?
This phrase formerly appeared in section 10(1) of the Sentencing Act.[57] However, by recent amendment, the words “known to the court” were removed. A review of the Second Reading Speech confirms that this removal was not intended to have any substantive effect. As a consequence, the observations in Weininger[58] continue to have direct application to the approach to be taken by courts when sentencing in South Australia.
[56] Weininger v The Queen (2003) 212 CLR 629, [17].
[57] R v Tran & Tran [2011] SASCFC 153.
[58] Weininger v The Queen (2003) 212 CLR 629.
The High Court decisions in Olbrich[59] and Weininger[60] have direct application to sentencing in South Australia and, insofar as earlier decisions of this Court express a contrary view, they no longer represent the law.
[59] R v Olbrich (1999) 199 CLR 270.
[60] Weininger v The Queen (2003) 212 CLR 629.
Conclusion
The Court allowed the appeal and set aside the sentence imposed by the sentencing Judge. The Court remitted the matter to the District Court for resentencing.