fact-finding for sentencers

FACT-FINDING FOR SENTENCERS By RICHARD G. FOX* and BERNARD M. O'BRIEN**

The process of the criminal trial may be divided into two consecutive stages: an adjudicatory or fact-finding stage, followed by a dispositional or sentencing stage. The former is concerned with the determination of guilt and is hedged round with elaborate procedural and evidentiary rules which narrowly confine the trial to evidence that is strictly relevant to determining whether the defendant is guilty of having engaged in criminal conduct of which he has been specifically accused. The right to an open hearing, confrontation by and cross-examination of witnesses, exclusion of hearsay, and the right to the benefit of any reasonable doubt in the Crown's case are all well established concommitants of procedural justice at the adjudicatory stage. The same safeguards and limitations are not so clearly available at disposition. At this latter stage, which is also concerned with the finding of facts, the process features the exercise of wide-ranging discretions marked by freedom from or relaxation of the procedural and evidentiary rules that attach to the determination of guilt. 1n recent the temporal gap between the two stages has tended to become larger the need for closer investigation of the offender's background bas obtain wider recognition. But t%e proper relationship between the fact- rules at adjudication and those at sentencing is only gradually being out.'

The sentencing decision is, of course, of enormous significance t offender whose economic or personal freedom is at stake, yet its 1

syncratic and highly discretionary nature is accepted as an integral p of the criminal process. Thus, Sir Frederick Jordan C.J. in Geddes sai

It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule. The position of the judge is analogous to that of a civil iun who are called upon Q award damages for a breach of contract, or a tort; & relation to goods which have no market value, and for the assessment of the value of which no generally accepted measure exists. The jury must do the best they om; and so must the judge.

* LL.M., Dip.Crim. (Melb.), Bamster and Solicitor of the Supreme Court of , Victoria, Reader in Law, Monash University.

** U . B . (Hons. ) (Melb. ), Barrister and Solicitor of the Supreme Court of Vie- toria, Tutor in Law, Monash University.

1 Thomas, D. A.. 'Establishing a Factual Basis for Sentencing', [I9701 0im.L.R. 80; McConvllle, M., 'Sentencing Issues: Judge and Jury' (1974) 11 University of Western Australia L.R. 230; Thomas, D. A., 'Developments in Sentencing 1964-1973' (1974) Crim. L.R 685. - - -. - - - .

2 (1936), 36 S.R. (N.S.W.) 554, 555.

163

164 Melbourne University Law Review [Vol. 10, Sept. '751

For a long time sentencing was a ritual rather than a decision-making exercise since fixed penalties were prescribed by common law or statute: death being the mandatory punishment for most felonies3 and the allocutus providing the prisoner with his only formal right to address the court and to obtain mitigation of sentence through the device of 'benefit of clergy'." Broader sentencing discretion became available in the nineteenth century as statutes prescribing ranges of penalties replaced the old system, but the only substantial limit imposed on the discretion was that the sentence be not greater than that prescribed by law. Sir James FitzJames Stephen writing, in 1863, on the capriciousness of the criminal law, drew attention to the discrepancy which existed between the attention paid to detail during the trial, and the perfunctory manner in which the sentencing function was performed: ' . . . without consultation, advice, or guidance of any description whatever'. 'Yet', he commented, 'the sentence is the gist of the proceeding. It is to the trial what the bullet is to the p~wder'.~

Prior to the passing of the English Criminal Appeal Act 1907, the prisoner who requested a reduction of sentence was asking for leniency which he might receive as a matter of mercy, but never as a matter of right, and even after appeals against sentence were allowed the Court of Criminal Appeal quickly indicated that it was not prone to interfere with a trial judge's exercise of discretion in apportioning sentences unless the sentence could be seen to be manifestly excessive or inadequate: a view which, shortly afterwards, was also adopted by the High Court of Aus- tr~tlia.~ Though more than a century has passed since Stephen wrote, only

Stephen, J., A History of the Criminal Law of England, London, 1883; Radzino- ~ C Z , A History o f English Criminal Law, Vol. 1, London, 1948.

Rear 119651 2 All E.R. 268. 'The Punishment of Convicts' (1863) 7 Cornhill Magazine 189, reprinted in Blom-

Cooper, The Language of the Law, London, 1965, 63-64. 6Sidlow (1908), 1 Cr. App. Rep. 28. 7 Skinner (1913), 16 C.L.R. 336; Cranssen (1936), 55 C.L.R. 509; House (19361,

55 C.L.R. 499; Harris (1954), 90 C.L.R. 652. In Harris Dixon C.J., Fullagar, Kitto and Taylor JJ. in a joint judgment stated (at 655-6): . . . the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been mis- led as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some dehite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to d o r d convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence

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' Fact-finding for Sentancers 165 I

during the last decade or two have the great changes in sentencing taken place: the ceremonial simplicity of old is all but gone, and complexity has become the keynote.

There is a multiplicity of reasons for the change. Firstly, the allocation I or distribution of sentencing responsibility has been signifcantly modiiied.

Considerable control over sentences has been shifted by statute from the courts to administrative bodies such as the Probation Service and the

I

Parole Board, and, as evidenced by the recent High Court rejection in I Lyonss of principles enunciated in the New South Wales cases of Portolesi , and Sloane1° the courts are only now coming to work out the extent to

which, in discharging their sentencing functions, they are obliged to con- I

sider and conform to the alleged policies and objectives of such authorities. I Secondly, there is the increased availability, both to convicted persons and 1 the Crown, of the right to appeal against sentence. The right of appeal ' against sentence of persons convicted on indictment dates from the English

Criminal Appeal Act 1907 which was adopted shortly afterwards by all I Australian States,ll but Crown appeals against sentences are of peculiarly 1 Australian origin, dating from 1924 in N.S.W. and Tasmania and currently

I available only in those States, Queensland and Victoria.12

1 appears unreasonable, or has not been sxed in the due and proper exercise of the court's authority.

1 The 'error' principle enunciated in Harris is not a limiting rule of law but a practice guide to be applied when an appellate court is called upon to review a sentence

I where, because of the trial judge's familiarity with unusual local standards or personal observation of the parties, he is regarded as having a special advantage over the

1 appellate court. There is a strong line of authority in Australia indicating that, ordinarily, courts hearing appeals against sentence have an unfettered judicial discretion free from the need to discover error in the exercise of the preceding discretion: Whittaker (1928), 41 C.L.R. 230; Gosper (19281, 28 S.R.(N.S.W.) 568. See also

I Geddes (1936), 36 S.R.(N.S.W.) 554; McKeown 119401 St.R.Qd 202; Beevers [I9421 St.R.Qd 230; Butler [I9711 V.R. 892; 'Appeals Against Sentence' (1952) 6 Res Judicata

I 90, 105-7; c f . Liekefett [I9731 Qd R. 355. The two lines of authority are reconcilable on the basis that the 'error' principle applies only to the application proceedings for leave to appeal. If leave is granted the court will exercise the initial discretion afresh. Contrast Taylor and O'Meally [I9581 V.R. 285 with Butler [I9711 V.R. 892 (A*-G.'s appeal).

s (1974), 48 A.L.J.R. 297. 9119731 1 N.S.W.L.R. 105. lo [1973] 1 N.S.W.L.R. 202.

I 11Vic.: Crimes Act 1958, s. 567; N.S.W.: Criminal Appeal Act 1912, s. 5; S.A.: C r i m i i Law Consolidation Act 1935-1973, s. 352; W.A.: Criminal Code, s. 688(1);

I Tas.: Criminal Code, s. 401; Qld.: Criminal Code, s. 671. , 12Vic.: Crimes Act 1958, s. 567A (introduced in 1970); N.S.W.: Criminal Appeal I Act 1912, s. 5D (introduced in 1924); Tas.: Criminal Code, s. 401(2) (introduced in

1924); Qld.: Criminal Code, s. 669A (introduced in 1939). In England, two I somewhat restricted avenues of Crown appeal exist. Firstly, under s. 33 of the

Criminal Appeal Act 1968 Crown appeals on important questions of law have been I available from the Court of Appeal to the House of Lords on an appropriate cer-

tificate: Gelberg v. Miller [I9611 1 All E.R. 618. These may include appeals against 1 sentence: Ottewell 119681 3 All E.R. 153. (Quare, whether sentencing 'practices' raise questions of yaw'?: Taylor v . O'Meally [I9581 V.R. 285, 299 per Smith J. See also 1 'Appeals against Sentence' (1952) 6 Res Judicata 90, 100-2.) Inadequacy of sentence

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A third, and critical, reason for the greater complexity of sentencing law relates to the dramatic increase in the types of sentence available to adult courts over the last decade or two. This is largely the product of the implementation, in the United Kingdom, of recommendations of Home Office advisory committees13 and their imitative, though incomplete, adoption in Australia. Thus, it is instructive to look at the present position in England under the Powers of the Criminal Courts Act 1973.14 For many years in England and Wales the sanctions available to the courts when dealing with those convicted of crime were simply absolute or conditional discharge, probation, fines and imprisonment. In 1967 the suspended sentence was added16 and, in 1972, the Criminal Justice Act introduced suspended sentence supervision orders, deferred sentences, community service orders, day training schemes and criminal bankruptcy orders. The 1973 consolidating Act thus reveals a doubling of the number of sanctions in less than a decade. Moreover, by separate legislation under the Mental Health Act 1959, and the Children and Young Persons Act 1969 respectively, the English Criminal Courts are additionally empowered to impose 'Hospital Orders' which allow them to commit offenders direct to mental hospitals, under varying conditions of security, or to make special arrangements for juvenile delinquents. A simiiar proliferation of sentencing alternatives is in the process of occurring in Australia and even Victoria, a State by no means at the vanguard of sentencing developments, can expect, if recent amendments to the Social Welfare Act 1970 are proclaimed,la a substantial increase in the range and type of criminal sanctions available to its courts.

Coupled with the new forms of sentence, particularly that of probation and similar forms of supervised release, is a new offering of supportive information services designed to provide the sentencing magistrate or judge

I with pre-sentence reports covering familial, social, medical, psychiatric and employment histories of convicted persons. This constitutes a fourth reason for the current attention paid to sentencing. The use of such presentence

alone is an insuflicient ground under s. 33. Secondly, under s. 17(l)(a) of the Criminal Appeal Act 1968, the Home Secretary's power to refer for review to the Court of Appeal the case of a person convicted on indictment includes power to refer only the question of sentence: Bardoe [I9691 1 All E.R. 948.

13Great Britain Home OEw, Penal Practice in a Changing Society, London, H.M.S.O., 1963; Great Britain Home Oflice, Report of the Advisory Council on the Penal System: Non-Custodiat and Semi-Custodial Penalties, London, H.M.S.O., 1970; Great Britain Home OfFice, Report o f the Advisory Council on the Penal System: Reparation by the Offender, London, H.M.S.O., 1970.

14 Consolidating some fifteen Acts relating to the powers of courts to sentence offenders. It does not cover juvenile offenders or those committed to mental hospitals under 'Hospital Orders'. The January 1973 issue of the Criminal Law Review is largely given over to a discussion of the principal provisions of the Criminal Justice Act 1972 which comprises the core of the 1973 Act.

35 Criminal Justice Act 1967. 16Social Welfare (Amendment) Acts 1973 and 1975.

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Fact-finding for Sentencers 167

services, often linked with clinical facilities for ongoing diagnosis and treatment, is a standard feature of the dispositional stage in Children's Court hearings, and there is clear evidence that the practice of utilising presentence and clinical services is growing in adult courts.

The new penology has been assailed by Kenneth Culp Davis in his book Discretionary 1ustice,l7 as vesting in judges and parole and probation agencies the greatest degree of uncontrolled power over the liberty of human beings that one can find in the legal system.ls But the discretion is not wholly unfettered, since the last two decades have also seen the enunci- ation, in statutes and cases, of the beginnings of workable sentencing principles. The Criminal Appeal Reports commencing in 1908 mark the beginning of the reporting of sentencing decisions and the Criminal Law Review continued in 1957l" a more systematic manner. Monographs such as those of Walker, Sentencing in a Rational Society,20 Devlin, Sentencing Oflenders in Magistrates' C0urts,2~ and Hogarth, Sentencing as a Human Processz2 all signpost recent concern with sentencing as a field of study and the work of Thomas, Principles o f Sentencingz3 and Cross, The English Sentencing System24 provide evidence that there exists in the in- terstices of judical decisions, at least at the appellate level in the United Kingdom, a coherent, albeit complex, body of sentencing policy and principle.

David Thomas, the leading commentator in the field, notes that as late as 1932 the report of the United Kingdom Home Department Committee on Persistent Offenders could describe sentencing behaviour almost entirely in terms of a tariff system. By 1961 the Streatfeild Committee saw a changed picture with greater emphasis on individualisation of sentence^.^" Thomas has discerned, operating in the Court of Appeal, a dual system of sentencing calling, firstly, for a choice between application of the tariff or use of individualised measures and, secondly, for a decision regarding either the precise point within the tariff range to be adopted, or the par-

17 Baton Rouge, 1969. See also Kadish, S.H., 'Legal Norm and Discretion in the Police and Sentencing

Process', (1962) 75 Harvard L.R. 904. 191n Canada the Criminal Law Quarterly has, since October 1970, contained

regular reports of sentencing decisions: see Editorial, (1970) 12 Criminal L.Q. 341. In Australia no specialised criminal law or sentencing reports exist though work towards this goal is W i g undertaken under the auspices of the Australian Institute of Criminology, see Second Annual Report 1974, 10.

20 London, 1969. London, 1970. Toronto, 1971. See also, in Australia, the South Australian Criminal Law and

Penal Methods Refonn Committee, First Report: Sentencing and Corrections, Ade- laide, 1973.

London, 1970. 24 London, 1971. 25 Great Britain, Home Office, Report of the Interdepartmental Committee on the

Business of the Criminal Courts, London, 1961, paras. 257-62.


ticular measure of individualised treatment required. Though Nigel Walker has said that Thomas' book has 'attributed a good deal more sense and consistency to the court than the latter it does appear that his analysis has influenced sentencers considerably. With improved reporting, and extended writing upon the subject, the clarification of sentencing principles is likely to continue in much the same fashion as the civil law's closest analogy to sentencing - principles of damages - has been elabor- ated in recent years.27

Apart from legislative or common law limits on choice or range of sanction, the exercise of sentencing discretion (both choice of sanction and the point within the range of that sanction) is ultimately based on the possession of and use by the sentencer of both:

(1) facts relating to the offence of which the accused has been found guilty (or to which he has pleaded guilty); and

(2) facts regarding the offender himself, including:

(a) his prior convictions,

(b) allegations of other antecedent or subsequent criminality, and

(c) his social, medical and psychiatric history and personality and

1 character.

I In addition, the sentencer may have recourse to facts related to:

(1) the prevalence and nature of the particular crime of which the accused has been convicted,

(2) the parole, remissions and release policies of the administrative agencies charged with the implementation of court-imposed sentences, and

(3) the availability of treatment services in government and non-government agencies to which an accused may be committed or referred as part of a proposed sentence.28

I These facts are not always readily available to the sentencer. Obtaining access to them and the use to which they may be put has raised legal issues many of which have only recently been recodsed by the courts and commentators. The courts have acknowledged their need to be fully informed at the dispositional stage and have asserted that both prosecution and defence counsel may be obliged to adduce evidence relevant to

26 (1971) 5 Sociology 278-9. 27As indicated by Luntz, H., Assessment of Damages for Personal Injury and

Death, Melbourne, 1974. 28 See text at note 185 below.


sentence.29 Notwithstanding the demise of the a120cutus,~~ failure to &ow a defendant or his counsel an opportunity to be heard on sentence clearly constitutes a reviewable denial of natural justiceS1 and failure by a court to obtain sufficient facts upon which to found its sentence may entirely vitiate the sentencing discretion.32

FACTS RELATING TO THE OFFENCE

The £irst question for the sentencer is: 'What did D do?' The court, in imposing sentence, requires an accurate version of the facts of the offence and, in joint enterprises, the nature and extent of the defendant's partici- pation in it. What D did is relevant, on Thomas' analysis, to both the primary choice between use of individualised measures or application of the tariff, and the secondary decision, namely, precisely what individualised measure of treatment is to be used, or, having regard to the gravity of the offence, exactly where on the tariff scale is the sentence to be located.

I

The substantial problem in determining the facts of the offence for the purpose of sentencing derives from the fact that, in trials of indictable offences, the tribunal comprises two elements, the jury on the one hand, which acts as fact-finder hearing and weighing evidence and discharging its role by expressing its view of the facts in the form of a verdict of guilty or not guilty, and, on the other hand, the judge with responsibility, inter alia, for imposing sentence utilising both facts relating to the offence implied in the jury's guilty verdict, and other facts relevant to disposition. Where a contested case is heard by a single judge or magistrate, the fact- finder and sentencer are one and the same and the problem of the sentencer's access to proven facts concerning the offence does not arise. How- ever, where an accused pleads guilty to a charge (whether indictable or summary) the problem becomes one of determining what facts are accepted with the plea. With both jury verdicts and guilty pleas the sentencer is supplied with some facts pertaining to the offence, but these may be insuflicient for sentencing purposes. In part, the inadequacy arises because of the nature of a guilty verdict or plea. In essence, such a verdict or plea is simply a shorthand statement to the effect that the minimum facts

z9 Mclntosh [I9231 St.R.Qd 278, 282; Pzercey [I9711 V.R. 647, 651; Beresford (1972), 2 S.A.S.R. 446, 449-50; Tex v. Smith (1974), 4 A.L.R. 401,403; Timbs, Tas- manian Supreme Court, unreported, 29 March, 1974, No. 11/74.

Rear 119651 2 All E.R. 268. Note the distinction between the allocutus and a general plea in mitigation at sentence: Gombos [I9651 1 All E.R. 229; Warlich

G 1

C1973J 1 N.Z.L.R. 101. 31 Ex parte Kelly; Re Teece 119661 2 N.S.W.R. 674. See also, Tas.: Criminal M e ,

s. 385(1). 32 Ling v. Suckling, Tasmanian Supreme Court, unreported, 10 April 1973, No.

14/1973 and, on appeal to Full Court, Suckling v. Ling, unreported, 29 May 1973, No. 27/1973. Followed in Murray v. Harris, Tasmanian Supreme Court, unreported, 8 July 1974, No. 33/1974.


necessary for conviction have either been proven beyond reasonable doubt or have been admitted by the accused. Ordinarily, because of the way the prosecution case has been presented, the general verdict carries with it, by implication, sufEcient details of the conduct constituting the offence to enable the judge to proceed to sentence. But sometimes the general verdict alone fails to settle what it was that D did. This failure may either result from ambiguity in the facts implied in the verdict (e.g. though found guilty of manslaughter, under which head of manslaughter was D convicted?) or an insuficiency of facts implied in the verdict (e.g. a guilty verdict in respect of a strict liability offence carries no implication as to D's knowledge or intention, but such information is highly relevant to sentence). How are such difEcdties to be overcome?

1. INTERPRETING THE JURY'S VERDICT

(a) Where the factual implications are clear

~ Where the facts implied in the verdict of guilty are clear, the judge must accept the necessary implication and sentence the accused accordi~gly.~~ But what is regarded as a necessary implication is sometimes carried to

I extremes. Thus, in the Victorian case of R i~hmond ,~~ a railway employee was found not guilty of stealing potatoes from a railway wagon, but guilty of receiving them. The trial judge, in sentencing the accused, referred to the frequency of pilfering from railway trucks and to the necessity of putting it down by exemplary sentences. On appeal against sentence, 1 counsel for Richmond argued that the prisoner was, in effect, being punished for larceny of the potatoes from railway trucks, for which he had not been found guilty and that there was no evidence before the court that he knew from whence the potatoes were stolen. Mr. Justice Cussen looked to the 'proper inferences' of the jury's findings and said:36

I

I I I agree with prisoner's counsel that, strictly speaking, the jury cannot be taken

to have found more than that the prisoner received goods (which were in fact ! stolen) knowing them to have been stolen. In other words, the jury cannot, strictly speaking, be taken to have found that he knew the goods were stolen from the

I railway trucks. But, cn? the other hand, the jury did not negative such a conclusion, and I think the learned Judge, considering all the evidence which I have carefully read, was justified in concluding that the jury probably thought, and at all events that the jury did not negative the view that the prisoner was privy to the fact that the theft was from the railway trucks, and so further concluding for himself

I that the prisoner was so privy.

A less forced example of the rule in operation is found in the case of Marshall,36 in which the accused was charged with one count of assault

I

33 Marshall (1917), 12 Cr.App.Rep. 208; Jama (1968), 52 Cr.App.Rep. 498; Webb [I9711 V.R. 147.

34 [I9201 V.L.R. 9. 35 Zbid., at 13. 36 (1917), 12 Cr.App.Rep. 208.


causing grievous bodily harm, one of malicious wounding and one of common assault. He was convicted only of common assault. Bailhache J., in allowing an appeal against sentence, said:37

It is tolerably clear from what fell from the Deputy Recorder, when passing sentence on the appellant, that he was inclined to the view that the appellant had kicked his wife and so injured her. The jury, however, by their verdict, negative that view. One of the most d8icult duties of a judge is to adjust his sentence to the verdict of the jury when he does not agree with it. In this case we think that the Deputy Recorder kept his own view of the case too much in mind, and that he did not give sufEcient effect to the verdict of the jury.

It would similarly follow that, if on a charge of rape, the jury returns a verdict of common assa~lt,3~ the judge may not sentence on the basis that the assault involved sexual penetration or even that it was accompanied by circumstances of indecency. The trial judge is not only prohibited from treating the accused as being guilty of a more serious offence than that of which he has been convicted,s9 but, where the factual implications of the verdict are patent, he must accept them despite his personal disagreement with the jury's findings and even though the facts are known to be different.40 In particular, in imposing sentence, he may not rely on facts relating to any offence of which the accused has been acquitted, no matter how perverse the acquittal may appear to be. The accused's criminal liability is predicated upon a conviction, and the fact of the conviction determines more than just that the accused is liable to punishment at the discretion of the court, it defines the nature and latitude of his liability to punishment, not only by reference to statutory maxima and minima but also by placing the conviction in the context of certain hypotheses of fact regarding the conduct of the accused. Therefore, if, as a matter of logic, there is only one hypothesis of fact that can justify the verdict, the judge is obliged to accept that hypothesis, and must ignore any facts which are inconsistent with it.

(b) Where the factual implications are ambiguous

What of the situation in which the verdict is ambiguous in that two or more hypotheses of fact could justify the jury's finding of guilt? The risk of ambiguity is a product of the broad delinition of offences in the substantive law. Manslaughter is the most troublesome example at common law, but expansively drafted statutory offences which proscribe, under the one description, a variety of quite disparate situations$l carry similar potential for ambiguity. The situation becomes quite critical when the

37 Zbid., at 209. 3s Vic.: Crimes Act 1958, s. 425 (1). 39 King (1925), 25 S.R. (N.S.W.) 218; Boyd 119751 V.R. 168. 40 Toomey [I9641 Crim. L.R. 419; Webb [I9711 V.R. 147. 41 For example, the offence of dishonestly obtaining financial gain by deception:

Vic.: Crimes Act 1958, s. 82 - adopted from s. 16 of the English Theft Act 1968, or that of causing death by culpable driving under Vic.: Crimes Act 1958, s. 318.

172 Melbourne University Law Review Wol. 10, Sept. '751

degree of moral culpability attaching to each of the different hypotheses of fact upon which the verdict is supportable, varies markedly. For example, a verdict of guilty of manslaughter can, theoretically in Victoria, be sustained on any one of five grounds42 ranging from manslaughter by criminal negligence to manslaughter as the result of successfully invoking the defence of provocation to a charge of murder. A number of techniques have been tried by sentencing judges compelled to choose between two or more hypotheses of fact open on an ambiguous verdict. Some courts have openly utilised the jury either by asking them questions, adopting their volunteered comments or calling for a special verdict; others have insisted on the sentencer's right to draw his own conclusions without further reference to the jury.

In England, the practice has long existed of asking the jury questions concerning the facts they have found. Thus in D ~ h e r t y . ~ ~ in 1887, Stephen J., in charging a jury in a murder trial, said:44

I must ask you to be good enough to say whether you mean manslaughter by violence wilfully inflicted, or by culpable negligence, for, of course it will make a considerable difference in the punishment.

The practice of asking questions of the jury concerning the facts behind the verdict must be distinguished from the right of the judge to ask a jury to reconsider its verdict or to seek clarification of its formal meaning. The courts have held that the judge has a right to ask the jury to reconsider its verdi~t,4~ but if the verdict is plain and unambiguous the judge is not entitled to interrogate the jury. In L ~ r k i n , ~ ~ in 1943, the trial judge was reprimanded by the Court of Criminal Appeal for questioning the jury, the court stating the general rule that where a verdict has been returned which is perfectly plain and unambiguous, 'it is most undesirable that the jury should be asked any further questions about it at all'.47 The situation is different where there is ambiguity and, in 1958, in Matheson, Lord Goddard suggested that in murder/manslaughter cases, the judge should generally ask the members of the jury how they arrived at their verdict when it could be justified on two or more distinct

Whatever the state of the authorities, the enterprise of interrogating the jury has little to commend it. First, there is the problem of whether the question or questions should be put to the jury before or after it returns

42 Provocation, excessive self-defence, intentional harm less than grievous bodily ham, criminal negligence, unlawful and dangerous act.

43 (1887) Cox C.C. 306. 44 Zbid., at 309. 45 Tappy and Dewis [I9601 V.R. 137; Bransgrove 119541 N.Z.L.R. 1076. 46 219431 1 All E.R. 217. 47 Zbsd., at 221. 48 [I9581 1 W.L.R. 474. Most recently in Warner [I9671 1 W.L.R. 1209 and Lipman

[I9691 3 W.L.R. 819, the practice was again mentioned but neither approved nor disapproved.


its verdict. Though, in Doherty, the question was presented in advance, in the course of the charge to the jury, in numerous other cases questions are put for the first tine after guilt has been deter~nined.~~ Since, in the latter situation, the question is asked of the foreman who, often, does not consult further with his fellow jurymen, it is doubtful whether the answer can truly be accepted as an expression of the unanimous opinion of the jury.50 Indeed, the leading nature of many of the questions put by the judge in such situations casts doubt upon the wisdom of attributing the answer received to the jury at all.61 Secondly, there is no rule of law that requires the jury to be unanimous in the reasons which led to its verdict. On the contrary, the jury is usually instructed specifically that it is not necessary for its members to reach their verdict by the same reasoning process, provided that, in the end, there is unanimity as to the guilt or otherwise. In the murder/manslaughter situation it may well be that the members of a jury which unanimously brings in a manslaughter verdict would, if separately polled, reveal considerable diversity in their individual identification of the grounds upon which their decision was based. Thirdly, it would seem that once the jury have returned their verdict, they are functus oficio and are entitled to be discharged, and accordingly, are under no obligation to answer further questions which the judge may put to them other than questions concerning proof of prior conviction^.^^ Fourthly, though it is often stated that the judge decides the law, while the jury decides the facts (and therefore, impliedly, it is proper to request them to elaborate those facts) this view is only partially true. While the members of the jury must be satisfied individually and collectively beyond reasonable doubt of the essential elements of the crime charged in order to rebut the presumption of innocence, they need not be unanimous or satisfied beyond reasonable doubt or indeed form any opinion at all regarding collateral facts.63 To perceive their role only as that of fact-finders is to misunderstand their primary function, which is that of deciding guilt. As a social institution for fact-finding, the jury has little to commend it for its inefficiency has been well doc~mented.~~ As Professor Brett has pointed

the jury's verdict is as much a decision upon the general issue of moral blameworthiness and individual liberty as it is upon particular facts and, for this reason, the long recognised inscrutability of a jury verdict

49 AS in Picker [1970] 2 Q.B. 161. 50 Leggatt 119711 V.R. 705. But see Clarke [I9341 St.R.Qd 23; Young [I9641 2 All

E.R. 480. 51Hawke~ (1931), 22 Cr.App.Rep. 172; Hill [I9541 N.Z.L.R. 117. 52 Warner [I9671 1 W.L.R. 1209, 1213-4, per Diplock L.J. 63 Thomas 119721 N.Z.L.R. 34, 40. 64 Kalven, H., & Zeisel, H., The American Jury, Boston, 1966; Cornish, W.R., The

Jury, London, 1968; L.S.E. Jury Pruject, 'Juries and the Rules of Evidence' 119731 0im.L.R. 208; Sealy, A. P., & Cornish, W. R., 'Jurors and their Verdicts' (1973) 36 Modern L.R. 496; McCabe, S., & Purves, R., The Shadow Jury at Work, (1974) Oxford University Penal Research Unit, Occassional Paper No. 8.

66 An lnquiry into Criminal Guilt, Sydney, 1963, 74.


should be preserved as a political safeguard except for special situations in which, because of patent ambiguity or inconsistency on the face of the verdict itself, the jury might have to be sent back to reconsider and clarify its decision.

In 1962 Thomas advocated greater use of the special verdict as a means of penetrating the veil of the general verdict.56 The continued existence of special verdicts is recognised in each of the code states whose statutory provisions not only permit the court to call for a special verdict in the traditional form, but also specifically empower the judge to require a jury to determine particular facts relevant to p~nishment .~~ In Victoria the continued existence of special verdicts is recognised by statute,58 but though each criminal jury has a right to return a special verdict, it may not be compelled to do so. In all Australian jurisdictions, as well as in England, the special verdict has fallen into complete desuetude. Its resurrection is both unlikely and undesirable not only because of the additional complexity it offers the trial process, but also because of the traditional objection that the use of the special verdict would deprive the jury of its power to acquit in the face of the evidence or to compromise by exercising its constitutional right to bring in a verdict of manslaughter on a charge of murder. As Thayer, in his Preliminary Treatise on Evidence at Common Law, has said:6%

Logic and neatness of legal theory have always called loud, at least in recent cemturies, for special verdicts, so that the true significance of ascertained facts might be ascertained and declared by the one tribunal fitted to do this finally and with authority. But considerations of policy have called louder for leaving to the jury a freer hand. The working out of the jury system has never been shaped merely by legal or theoretical considerations. That body always represented the people, and Game to stand as a guardian of their liberties; so that whether the court or the jury should decide a point could not be settled on merely legal grounds; it was a question deeply tinged with political considerations.

What use may be made of the factual implications which are sometimes deduced from the content of questions addressed by the jury to the judge in the course of its deliberations or derived from gratuitous comments made on returning its verdict? In a murder case, Widgery L.J. tortuously utilised the jury's remarks to aid him to deduce the facts which led them to their manslaughter verdict:61

66Thomas, D. A., 'Case Stated in the Court of Criminal Appeal' (1962) Crim.L.R. 820, 825.

57 W.A.: Criminal Code, s. 642; Tas.: Criminal Code, s. 383; Qld: Criminal Code, s. 624.

s s ~ i c . : Crimes Act 1958, s. 569(3). See Brown and Brian [I9491 V.L.R. 177 -7 the last reported Victorian case concerning a special verdict.

59 Boston, 1898, 218. These objections do not apply if the jury is used, as is possible under the Codes, to bring in a special verdict only as to sentencing facts after having returned a general verdict as to guilt.

60 (1968), 52 Cr.App.Rep. 498. 61 Zbid., at 501-2.

-- - - - -- - - - - --


This is a matter which is very difficult to determine on the material before us. It is, however, necessary to go back to the words used by the jury when they originally returned and expressed their finding of fact, as it were. They were of the opinion that there was no intent to murder, presumably, therefore, no intent to kill; they found there was intent to do wilful bodily harm, which seemed to be an intelligent attempt to avoid the phrase 'grievous bodily harm' and possibly to do something less than grievous bodily harm, and further they found that there was provocation and they concluded their phrase with the words "which unfortunately resulted in death". The court thinks that the only way to interpret this case is to treat it as one in which the jury considered that there was no intent to do grievous bodily harm, although intent to do some bodily harm clearly, and furthermore that there was provocation, and that there was an unfortunate element which in some way injected itself and gave rise somehow to the death. . . .

In the particular case, the Court of Criminal Appeal reduced the sentence from ten to three years' imprisonment, incidentally illustrating the substantial scale of sentence reduction which may take place when an appellate court accepts a hypothesis of fact more favourable to the accused than another also open on the verdict. Although courts may receive and act upon the jury's volunteered comments, and often do, they are not obliged to accept or to give effect to them at sentencing. Accordingly, in Tappy and Dewis, the Victorian Supreme Court expressed no doubt that a jury's recommendation for mercy was in no way binding upon the trial judge.62

The above methods of resolving ambiguities in the facts implied in a criminal verdict are both forced and haphazard and it is therefore not surprising that the English Court of Appeal in N~t ta lE ,~~ the Victorian Full Supreme Court in Harri~,6~ and the Queensland Supreme Court in H a ~ e l i c h ~ ~ have indicated that, while the judge is free to enquire from the jury what they found, or to deduce the same from their volunteered comments, he is under no obligation to take either step, and may, instead, come to his own independent determination of the relevant facts. Thus in Harris, Lowe J. who delivered the judgment of the court, in referring to the trial judge, stated9

He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge, in forming his view of the facts, must not, of course, form a view which confYicts with the verdict of the jury, but so long as

62 [I9601 V.R. 137. See also Whittaker (1928), 41 C.L.R. 230, 240, per Isaacs J. 63 [I9681 Crim.L.R. 173. See also Diplock L.J. in Warner 11967 1 W.L.R. 1209,

1214. 64 [I9611 V.R. 236. Followed in Kane [I9741 V.R. 759, 762; and Boyd [I9751 V.k

168. 65 [I9671 Qd R. 183 citing the Queensland Court of Criminal Appeal decision of

Dubois which was reported in [I9661 Q.W.N. 25, but not on the question of sentence. See also Bedington [I9701 Qd R. 353, 364; and Laporte [I9701 W.A.R. 87, 89. It should be noted, however, that in Laporte, where the same facts could support two possible verdicts differing in gravity, the court was not faced with having to make a choice between two or more hypotheses of fact open on the jury's verdict. Harris was cited simply in support of the proposition that the judge was free, wihin the confines of the verdict, to form his own view of the gravity of the accused's conduct.

66 [I9611 V.R. 236, 237.

Melbourne University Law Review [Vol. 10, Sept. '751

he keeps within those limits, it is for him and him alone to form his judgment of the facts.

Counsel for the applicant in Harris had argued that the trial judge was bound to take the most lenient view of the facts which would support the jury's verdict, though neither he nor any member of the Full Court Bench knew of any authority to that effect. Not unexpectedly, Lowe J. rejected the argument, observing that the court thought that there was no foundation in law for such a proposition.

As it happens, in a number of later South Australian decisions which will be discussed below, the Supreme Court of that State has held that the Woolmington principle applies at the dispositional stage on a plea of guilty, so that while the judge may not be bound to take the most lenient view of the facts, he must, nevertheless, give the accused the benefit of any reasonable doubt. If this rule is applicable in relation to the judge's fact- finding function on a plea of guilty, it would be absurd not to apply the same proposition to the situation in which the judge is confronted by a jury verdict which is capable of being explained by reference to two or more equally persuasive versions of the facts, one of which involves less fault on the part of the accused. Such a rule, it is suggested, was applied in the New South Wales case of Muraces7 in 1957, some four years before Harris. In that case, the accused was charged with murdering a nine-year- old girl. The police version was that he pointed a shotgun at the child intending to frighten her and the gun discharged, killing her. At his trial, the accused denied intentionally pointing the gun or intending to frighten

I the girl. The trial judge addressed the jury on the possibility of manslaughter by gross negligence even without an intentional pointing of the

I gun, but after the jury brought in a verdict of manslaughter, the trial judge, in sentencing the accused, took the view that the jury believed the police version of the accused intentionally pointing the shotgun at the child.

I On appeal to the Full Court of the Supreme Court of New South Wales (Street C.J., Owen and Brereton JJ.) reduced the sentence from five to three years imprisonment, observing that the direction to the jury had indicated that a conviction for manslaughter was possible on more than one version of the facts and, since it was not clear on which version the jury grounded their verdict, the applicant was entitled to be given the full benefit of the possible doubt created by the circumstances and to have his sentence reduced.68

It is submitted that to allow the accused the benefit of any reasonable doubt is, in effect, to take the most lenient view of the facts in all cases except those in which the favourable interpretation sought to be advanced by the defendant is insufficiently credible to cast a reasonable doubt upon

67 (1957), 74 W.N. (N.S.W.) 147. 68 Zbid., at 149-50.

-7 -


the prosecution's version of the facts. Where the verdict is as consistent with one view of the facts as another, it is preferable, for the reasons advanced earlier, that the sentencer should form his own view of the facts and not question the jury. But in doing so, he should not be regarded as a totally free agent. If counsel's proposition in Harris that the judge is bound to adopt the most lenient view of the facts is thought to go too far, the alternative is surely not standardless and uncontrolled discretion. The sentencing judge must at least observe the same evidentiary standards as demanded of the jury and allow the accused the benefit of any reasonable doubt. It is submitted that the application of this standard, in any situation in which the jury has determined guilt and there remain two equally plausible versions of the facts surrounding the defence, de- mands as a matter of logic that the judge, in giving the accused the benefit of the doubt, adopt the most lenient of the alternative versions of the facts before him.

(c) Where insuficient facts are implied in the verdict

The preceding cases dealt with the situation in which the guilty plea or verdict itself determined the material facts relating to the nature of the offence. But the facts regarding the circumstances of the offence which are settled by the verdict may nevertheless be insufficient for sentencing purposes. The predicament, and one of the possible solutions, is classically illustrated in Warner.6s In that case the accused's defence to a charge of unauthorised possession of drugs was that he did not know that they were in the bag in which they were found. The jury was directed that the accused's alleged lack of knowledge was not pertinent to proof of the offence, since it was one of strict liability and ultimately a guilty verdict was returned. For sentencing purposes, however, information regarding the intentionality of the accused's conduct was vital. Since the jury's verdict carried no necessary implications regarding the accused's state of knowledge, the trial judge invited the jury to retire again to decide the particular point. The jury concluded that the appellant was, in fact, aware of the bag's contents and the subsequent sentence of two years' irnprison- ment was upheld on appeal. No disapproval was expressed regarding the manner in which the jury were used after verdict. The problem of verdict implying insufEcient facts relating to the offence can arise in a multitude of ways. Apart £rom offences of or involving strict resp~nsibility,'~ the jury's verdict may fail to settle the existence or otherwise of facts which, though not amounting to a substantive defence, go directly to the question of sentence.?l For instance, the extent of provocation in assaults, the role

69 [I9671 1 W.L.R. 1209. 70 For example, assaulting a policeman in the execution of his duty, or unlawful

carnal knowledge. 71 Boyd [I9751 V.R. 168.


of the victim in precipitating sexual offences, and similar allegations of mitigation or of aggravation.

Again, the two techniques discussed in relation to ambiguous facts, namely, interrogating the jury, or allowing the judge to form his own opinion, are theoretically available. Despite Warner, the practice of send- ing the jury back to determine collateral issues (albeit issues pertaining directly to the circumstances of the offence itself, rather than broader ancillary sentencing questions) has even less to commend it than the practice of interrogating the jury regarding the substantive elements of the offence. Not only do all the earlier objections continue to apply but, in the cases under discussion, the evidence subsequently regarded as relevant to sentence would, strictly speaking, have been inadmissible and might not have and indeed should not have been led before the jury in the trial proper.72 The jury may, in fact, proffer volunteered comments on sentencing matters, particularly in the form of recommendations for leniency or mercy, but it is well established that these are not binding on the judge. If, therefore, the elucidation of sentencing facts not implied in the verdict is for the judge alone, by what means should they be ascertained? The problem is presented in its most acute form in relation to guilty pleas.

I 2. FINDING THE FACTS OF THE OFFENCE ON A PLEA OF GUILTY

The majority of criminal cases, particularly in the lower courts, are disposed of by way of a guilty plea.73 Where an accused person has pleaded guilty to the indictment or information the trial judge or magistrate, in order to evaluate the culpability of the offender and to assess penalty, must come to some view of the facts which constitute the crime. Facts pertaining to the offence can come before the sentencer both as sworn evidence (either in the form of depositions taken at the preliminary hearing or evidence given under oath at sentencing) and as unsworn statements made by the prosecutor, defence counsel or the accused at the time of sentencing or in the form of proofs of witnesses submitted to the sentencing court after an accused has been committed for sentence following a preliminary hearing at which he has pleaded

72 Gosney [I9711 3 All E.R. 220. 73Department of Attorney-General and of Justice, N.S.W. Bureau of Crime

Statistics and Research, Statistical Report No. 11, 1973, 4. The figure is approxi- mately 85%. A plea of guilty per se should not affect the severity of the penalty, although as evidence of remorse it may constitute a mitigating factor: Thomas, D. A., Principles o f Sentencing, 197, cf. De Hmn (1967), 52 Cr.App.Rep. 25, and Cross, R., The English Sentencing System, London, 1971, 153-4.

74 As under S.A.: Criminal Law Consolidation Act 1935-74, s. 57a. See also N.S.W.: Justices Act 1902-74, s. 51A(d), and McKimm, K.J., Criminal Procedure and Prac- tice in New South Wales, 2nd ed, Sydney, 1972, 21; cf. Vic.: Justices Act 1958, s 42B; Practice Direction (Plea of Guilty: Statement of Facts) [I9681 1 W.L.R. 529.

-


The rule which applies at sentencing following jury trials, namely that the accused may only be sentenced for those offences of which he has been found guilty, also operates following guilty pleas. Thus, where the prosecution has accepted guilty pleas to a lesser number of offences than charged and has withdrawn or led no evidence in respect of the remain@, the court is prohibited from sentencing the accused on the basis that he is guilty of any of the remaining charges. In the Victorian case of Webb75 on a presentment alleging counts of forcible abduction, rape and indecent assault, the accused pleaded guilty to rape with mitigating circumstance^^^ and not guilty to the other counts. No evidence was led by the Crown. After direction by the trial judge, the jury returned a verdict of rape with mitigating circumstances and acquitted the accused of the remaining two counts. The trial judge imposed the maximum penalty of ten years for the rape offence and fixed no minimum parole term, but in doing so patently took into account the matters constituting the indecent assault (a forcible act of fellatio). The Victorian Full Court (Winneke C.J., Pape and Lush JJ.) held that since the accused had been acquitted of the count of indecent assault, the trial judge was not entitled to give it weight in imposing sentence. Similarly, in Huchison77 the accused pleaded guilty to a charge which contained a count alleging a single act of incest with his daughter. The daughter had made an unsworn statement alleging repeated acts of intercourse and the judge, in what he regarded as an attempt at ascertaining the truth of the matter, heard sworn evidence from both the accused and his daughter and, after concluding that a number of acts of intercourse had taken place, passed sentence on that basis. The Court of Appeal acknowledged that it was permissible for the prosecution, after notification to the defence, to put forward one or two counts as sample counts representing an allegation of a series of related criminal incident^.^^ However, the Court held that this was not such a situation: the accused had not admitted guilt in respect of the other alleged incestuous acts but had been deprived of his right to trial by jury and had been improperly sentenced. In the circumstances the sentence was reduced from four to two years.

What if the accused wishes to plead guilty but, at the same time, challenge the prosecution facts regarding circumstances of the offence, either by denying elements of aggravation in the Crown's story, or by asserting the existence of mitigating factors? As has been shown by Thomas,79 attempts at establishing such collateral sentencing facts by testing the issue of guilt itself are both strategically dangerous and may

75 119711 V.R. 147. See also Jackson [I9741 Crim.L.R. 718. 76 Vic.: Crimes Act 1958, s. 44(2). 77 (1972), 56 Cr.App.Rep. 307. 78 See the discussion of this practice in Reiner (1974), 8 S.A.S.R. 102. 79 [I9701 Crim. L.R. 80, 85.


indeed be impossible of success. The challenge must take place at the sentencing stage, itself.

What is implied in a guilty plea? First, a plea of guilty admits no more than the essential ingredients of the offence (but renders those facts established and incontr~vertible).~~ What are the essential ingredients of an offence? At minimum they would appear to include all the material allegations contained in the information, presentment or indictment which, had the case been defended, the Crown would have had to establish beyond reasonable doubt. If the information charges that the defendant unlawfully entered certain premises then the defendant, in pleading guilty to that charge, is admitting and putting beyond dispute the fact that he entered the particular premises without authority or excuse. And if the indictment should go on and aver a time, place and method of entry, the plea of guilty may mean that those facts are also admitted and put beyond dispute if they are essential to the legal definition of the offence.81 Conversely, if mens rea is not an essential ingredient of an offence, then nothing relating to the accused's state of knowledge or intention is admitted by virtue of the guilty plea alone.82

However, not all allegations contained in an information or presentment are essential to proof of the offence charged and even where there are statutory provisions such as s. 255 of the Commonwealth Customs Act 1901-1974 or s. 175(1) of the South Australian Road TrafEc Act 1961- 1973, which state that averments in the complaint shall constitute prima facie evidence of the matters averred, allegations which go only to aggravation may be challenged by a defendant despite his pleading guilty.83

Secondly, a plea of guilty negatives all possible defences to the charge. That is to say it removes from dispute within the sentencing process all assertions of fact which, in effect, allege innocence of the offence to which the defendant has pleaded guilty. Chief Justice Bray of the South Australian Supreme Court stated this clearly in Schugman v. Menz:*k

When the appeal c m on for hearing before me . . . counsel for the appellant claimed that his client had acted in selfdefence. I pointed out that if that was so there was a complete defence to the charge and so long as the plea of guilty stood I had to assume that he did not act in self-defence in the sense of using no more force than was reasonably necessary to defend himself.

*@Riley [I8961 1 Q.B. 309, 318; Vecsey [I9621 S.A.S.R. 127; Maitland [I9631 S.A.S.R. 332; Law v. Deed [I9701 S.A.S.R. 374; Nash v. Haas, Tasmanian Supreme Court, unreported, 15 February, 1972, No. 3/1972. The rule applies except where the plea is induced by material mistake: Znglis [I9171 V.L.R. 672; Stewart [ 1 9 a V.R. 106; Fonyodi [I9631 V.R. 86; Forde [I9231 2 K.B. 400, 401, in which case the plea may be changed to one of not guilty at any time before the case (whether indictable or summary) is finally disposed of by sentence or otherwise: S. v. Recorder of Manchester [I9711 A.C. 481.

81 As in the old distinction between burglary and house-breaking. 82 Law v. Deed [I9701 S.A.S.R. 374. 83 Simmons v. Venning (1969), 1 S.A.S.R. 403. 84 [I9701 S.A.S.R. 381, 382.


And, similarly, in Victoria it has been held that a plea of guilty to an incest charge excludes the possibility that the accused was not criminally responsible because he was under the age of fourteen years at the time of the offence.85

Thirdly, a plea of guilty does not admit any of the circumstances of aggravation which may be alleged or implied by the prosecution nor, conversely, does it in itself negative any circumstances of mitigation not amounting to complete exc~lpation.~~

Following the entry of a plea of guilty the prosecutor will normally inform the court of the facts of the offence and give details of the defendant's previous convictions and antecedent history. It is not ordinarily the duty of the prosecutor to stress aggravating factors in the offence or to press for a heavy sentence. On the other hand, the defendant, though pleading guilty, is usually keen to rebut allegations or implications of aggravation and to point to mitigating circumstances likely to affect sentence. The court, though it may not compel an accused to give evidence even at senten~ing,~r can enquire into any matter in respect of which it requires information and may ask the prosecution to elaborate or clarify any aspects of the facts of the case.88 Were it not for the plea of guilty, some of the facts in issue at sentencing might well have also been in issue in determinhg criminal liability, in which case the mode of proof would have had to conform to the standard laid down by Woolmington. Do the same standards apply when, following a guilty plea, the facts are first challenged in the context of proceedings concerning punishment?

In a series of recent decisions handed down by the South Australian Supreme Court a comprehensive set of propositions has been enunciated in relation to factual challenges following a plea of guilty. The first, and most fundamental of these propositions, is that the golden thread of Woolmington applies to the dispositional as well as the adjudicatory stage of the criminal trial. The position was clearly stated by Chief Justice Bray in Law v. Deed: s9

I think, that as I said in Sarnuels v. Festa,sO that the principle by which the defendant has the benefit of any reasonable doubt applies all through the criminal law and to matters of penalty as well as to matters of guilt or innocence except in the case of the defence of insanity or in the case of any statutory provision to the contrary.

85 R. v. Stewart [I9601 V.R. 106. A plea of guilty will also negative defences based upon statutes of limitation if the court otherwise has jurisdiction: Ray v. SaIkeCd (1896), 2 A.L.R. (C.N.) 321.

86 Powell v. Webberley [I9631 Tas.S.R. 62; Law v. Deed [I9701 S.A.S.R. 374, 377. 87 Law v. Deed, ibid., 379; Nash v. Haas, ibid. note 80, per Burbury C.J. 8s Van Pelz 119431 K.B. 157; Butterwmser 11947 2 All E.R. 415, 417. 'The cmrt

can demand any information it t h ' i s fit', per Lord Goddard C.J. 89 At 328. 90 Samuels v. Festa [I9681 S.A.S.R. 118.


In Jackson v. KimberJS1 Napier J. had held that where Parliament prescribed a minimum penalty for a particular offence, but allowed a penalty below the minimum to be imposed on a certificate that the offence was of a trifling nature, the court had no right to impose the lesser penalty unless there were proved or admitted facts which indicated that the offence was of a less serious nature than that which Parliament must have regarded as the norm. His Honour held that the burden of establishing that the con- travention was of a relatively tri.8ing character was upon the defendant who was calling upon the court to exercise the power of reducing the fine below the prescribed amount. In Samuels v . Festa Bray C.J. declined to accept the proposition in Jackson v. Kimber that the onus of proof of mitigating circumstances is on the defendant and took the view that 'the onus is not on a defendant in a criminal court to prove anything except the defence of insanity or except where some statute specifically cast the burden of proof upon hi1n.'~2 In Law v. Deed, in reasserting the dominance of the Woolmington principle, His Honour adverted once again to Jackson v. Kimber and specifically disapproved of it.

The second proposition laid down by the South Australian Supreme Court makes it clear that, though the ultimate persuasive burden of proof beyond reasonable doubt rests upon the Crown at all stages of the criminal prosecution, the defence is obliged, even at the dispositional stage, to

I discharge an evidentiary burden:93 I should add that of course I do not mean to suggest that it is for the prosecution to rebut in advance any matters of mitigation before they are raised by the defence or appear from the prosecution's own story. I think there is some analogy to defences like self-defence and provocation. The prosecution does not have to rebut these defences in advance before they are raised; but once they become issues in the case, in the sense that there is some evidence about them from some quarter, Ohen the onus is on the prosecution to negative them beyond reasonable doubt.

Thirdly, in sentencing following a plea of guilty, the court should, prima facie, act upon what is disclosed in the depositions as being the facts since they have already been sworn to. Supplementary and additional matters raised by the defence, if not disputed by the Crown, can be accepted and acted upon without being supported by oath, but if such matters are disputed, they should be decided only by the sworn evidence of both parties. In VecseyJg4 Travers J. observed that because a sentence was not capable of being accurately and scientifically measured, many disputed details could be passed over without being fully or finally resolved, but what had to be decided was the 'substance of the offendingy. In Maitlandg6

91 [I9341 S.A.S.R. 315. 92 Zbid., note 90, at 121. 93 Law v. Deed, ibid., note 86, at 379. 94 [I9621 S.A.S.R. 127. 95 [I9631 S.A.S.R. 332. See also Thompson, Tasmanian Supreme Court, unreported,

22 October, 1973, No. 5211973.


the Supreme Court of South Australia (Mayo, Travers and Hogarth JJ.) affirmed the view taken in Vecsey that, where evidence is given at a preliminary hearing and the depositions are before the trial judge, he should, prima facie, act on what is disclosed in the depositions as being the factsv6 and should act on a version of the facts contrary to those in the deposition only if sworn evidence is given. The court also aflirmed that additional evidence might be admitted by agreement, or if disputed, on sworn evidence of both parties. As a corollary of this ruling, the court's general view was that if an accused intends to plead guilty but wishes to dispute facts, he should do so at the preliminary hearing or, after notice has been given to the prosecution, he should seek leave of the trial judge to give or call evidence before sentence. Their Honours noted the special problem which exists under sections such as 57a of the South Australian Criminal Law Consolidation Act 1935-74, which deals with persons committed for sentence on a plea of guilty at a preliminary hearing without the taking

I of evidence. In such situations the section expressly contemplates that the material to be brought before the criminal court includes not only the statements made by the prosecutor and the proofs of witnesses tendered by him, but 'any statement made by the defendant in contradiction or explanation of the parts stated by the prosecutor'. Where there was a conflict of evidence appearing on the depositions, or where a conflict appeared on the statements brought before the criminal court under s. 57a of the Criminal Law Consolidation Act and the prosecution was unwilling to allow the accused's version to be accepted, the only practical course was for the trial judge to hear the witnesses on either side. The court reiterated that, irrespective of whether a person was to be sentenced on the basis of depositions, statements under s. 57a, or sworn evidence led before the sentencing judge, insofar as the depositions, statements or evidence left any matter open, the accused was entitled to have the benefit of any doubt that there might be.

It was recognised that dilliculties could arise where an accused person was brought before a criminal court and pleaded to an offence on an ex officio indictment since, in such cases, there were no depositions and the unsworn statements of the Crown witnesses stood on the same footing as those of the accused. The court warned that this procedure should be adopted only at the request of the accused and where there was likely to be no substantial dispute as to the facts of the offence. But if in any such case 'any dispute of substance emerges from the statements, it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused'.97

96The judge must look at the depositions before sentencing; Znglis [I9171 V.L.R. 672, 674, per Madden C.J.

97 Maitland 119631 S.A.S.R. 332, 335.


Fourthly, the South Australian casesg8 lay down that if a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution either at the preliminary hearing or before the sentencing judge, in order to cast a reasonable doubt he must do so by sworn evidence either from himself or another. If, on the other hand, the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused. In two earlier Queensland casesg9 the Queensland Full Court had repeatedly warned that it was an error to take into account, in sentencing a convicted person, a disputed material statement made by the prosecution unless the contents of that statement became substantiated by sworn evidence, The Full Court of

I Queensland did not, however, expressly refer to the applicable quantum of proof.

The South Australian decisions would appear to settle that once the Crown has alleged matters of aggravation on sworn evidence, it is for the defence to deny them by sworn evidence, albeit only to the extent of casting a reasonable doubt. However, it is submitted, that although, as a matter of practice, a defendant will almost inevitably have to meet sworn evidence with sworn evidence, formulation of a burden of proof rule in sentencing in these terms goes too far for it results in the imposition of a higher standard of proof upon a defendant than required under the Woolmington principle which it is purporting to apply. Sworn evidence does not, per se, establish facts beyond reasonable doubt. Prosecution evidence, although sworn and uncontradicted by sworn testimony for the defence, may yet be disputed by the defence and rejected by the court as not being credible beyond reasonable doubt. The court is never bound to accept evidence, even though sworn and uncontradicted, which is in itself inherently unreasonable and improbable or inconclusive and unconvincing.lO0

The reference to 'within the bounds of reasonable possibility' in relation to the acceptance of the unsworn version most favourable to the accused mans, it is submitted, no more than that the court should act only upon credible evidence. The same principle must equally apply to evidence on oath. As between two unsworn, equally credible but contradictory stories, the defendant's version must be accepted since the Crown cannot, in those circumstances, be said to have discharged its overriding burden of per-

9s Vecsey; Maitland; Weaver v. Samuels [I9711 S.A.S.R. 116. 99Murphy [I943 Q.W.N. 4; West v . Sprinkhuizen [I9611 Qd R, 313. See atso

Jones v. Chalmers 119651 Qd R. 508. 100 Swinburne v. David Syme & Co. [lm V.L.R. 550; Taylor v. Ellis 119563 V.L.R.

457. In Vecsey the sworn evidence of the defendant was disbelieved by the trial judge.

. - -

I Fact-finding for Sentencers 185

suasion. The same result will follow a dispute in the form of two equally credible sworn stories. And if the prosecution alleges matters of aggravation by way of sworn but unconvincing evidence, the defendant must,

I

notwithstanding the formulation of the South Australian rule, be able to call successfully upon the Court to reject the evidence as failing to satisfy

I

the standard of proof beyond reasonable doubt without having to adduce sworn evidence on his own behalf.

I Fifthly, the rights of the defendant are no less with regard to circum-

, stances of mitigation. Ordinarily, when the accused is asserting the existence of mitigating factors, there is no possibility of comparing sworn statements with sworn statements or unsworn statements with unsworn

i statements. The facts normally are within the knowledge of the defendant I alone, and his version is put forward by counsel if he is represented or, if

unrepresented, by himself without being sworn. If the prosecution desires to challenge the defendant's account of the circumstances of mitigation, it cannot force him into the box, but if it thinks it can disprove his account by other witnesses, it must be given an opportunity to call such witnesses

1 and, if this is done, and the defendant has not entered the box, the case will be one of sworn testimony against the unsworn statement and the usual principles of criminal evidence will apply. If the prosecution is not in a position to negative the allegation of mitigating circumstances, the defendant's version must be accepted 'within the bounds of reasonable possibility' and if the court is minded to reject it as being beyond those , bounds (i.e. as not credible) it is obliged, at minimum, to allow hi an opportunity of supporting his story by his oath and that of any other

I witnesses he may wish to call.lol

Sixthly, these propositions are equally applicable to courts of summary I jurisdiction as to the superior criminal courts.lo2 Awareness of the practical

implications of the formulation of these rules did not escape the appellate courts. In Weaver v. Samuels Bray C.J. acknowledged that an additional burden was likely to be placed on the overworked courts of sumraary jurisdiction if defendants invoked their rights at the sentencing stage on a wholesale scale:l03

I . . . but it seems to me that there is no escape. The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of

I 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

I 101 Maitland 378; Weaver v . Sammuels 119; O'Malley v . French (1971) 2 S.A.S.R. 110. 'In the absence of evidence negating the matters of mitigation put forward b ~ ! him, the appellant was entitled to the benefit of any reasonable doubt upon the issue.

I See also Darwin v. Samuels (1971) 1 S.A.S.R. 411, 421. 102Schugman v. Menz [I9701 S.A.S.R. 381; Law v. Deed ibid. note 86; Jones v.

Holmwood [I9741 W.A.R. 33, 34. I '03 At 119-20.


dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence.

And, in similar vein, in Law v. Deed, after noting that in courts of summary jurisdiction sworn evidence is normally not given when the defendant pleads guilty, His Honour said:lo4 . . . but it is of great importance, despite whatever inwnvenience may be caused, that the rights of the defendant should be preserved 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.

Even where there are statutory provisions such as those under the Tas- manian Justices Rules 1961 specifically allowing justices to 'receive such evidence or statements as they think fit',l05 the overriding obligation to act judicially in deciding whether to take evidence on oath or to act on in- formal statements, may in relation to disputed facts, particularly those in which the prosecutor alleges circumstances adverse to the defendant, dic- tate that sworn evidence be taken.1°6

It must be recognised that although Jackson v. Kimber has been disapproved, certain aspects of mitigation, e.g. special reasons for not dis- qualifying a driver in a tr&c case, may by statute require that a defendant bear the burden of proving his assertion on the balance of probabilities. It is desirable, on a plea of guilty, that in such circumstances the mitigating factors be advanced on oath.lo7

The operation of the propositions set out above is well illustrated in the decision of the South Australian Supreme Court in Beresford.los In that case their Honours Hogarth, Bright and Wells JJ. were hearing an appeal concerning a sentence imposed upon a drug offender for five offences against the provisions of the Narcotic and Psychotropic Drugs Act 1934-1970. During the course of sentencing the defendant who had pleaded guilty to all five counts, the judge commented:

It is true that there is no evidence that you are a "pusher" but equally as you did not see fit to give the police the names of the persons who smoked the drug on your premises I have nothing but your self-serving statements to show that the occasions at your house wore purely social.

The Full Court, in response to this, stated:lo9 On this we would comment, that it is the duty of the court when detaminiig the facts on which a sentence is to be imposed to take the version which, within the

104 At 377. 105 Rule 42(4). 106 Powell v. Webberley, ibid. note 86; Nash v. Haas, ibid. note 80; Cooling v. Steel

(1971), 2 S.A.S.R. 249; Salter v. Seebohm (1972), 4 S.A.S.R. 192; Recorder of Grimsby, ex parte Purser [I9511 2 All E.R. 889, 890-91. See also Tas.: Criminal Code, s. 386(7) - (10) as amended by Criminal Code Act (No. 4 ) 1973.

107 Jones v. English [I9511 2 All E.R. 853. 10s (1972), 2 S.A.S.R. 446. 109 Zbid. at 449.

- -


bounds of reasonable possibility, is most favourable to the appellant (R. v. Maitland). It would be a matter of very grave consequence if it had been established that the appellant had supplied the drug to other persons for fee or reward. But in the absence of any evidence or admissions by the appellant to that effect the appellant can only be dealt with on the basis of the evidence which is before the wurt; and that evidence did not suggest 'his supply of the material for reward. This is not an occasion when there was any onus thrown upon the appellant to prove the facts. If there were any such onus, then it is at least open to doubt whether a self-serving statement made by him would be of any avail, but the onus is not upon hi, and the version whioh he gave is at least reasonably possible. We think that the case must therefore be dealt with on the basis most favourable to the appellant, namely, that he supplied the drug only on social occasions and without fee or reward.

In similar fashion, in 1972 in the Tasmanian decision of Nash v. Haas, Burbury C.J., in adopting as propositions of sound law the principles set out in Maitland and Law v. Deed, had this to say:'1°

Where aggravating circumstances are asserted by the prosecutor and nat admitted by the defendant, or mitigating circumstances are asserted by the defendant and not admitted by the prosecution, the proper course is to take sworn evidence, because, where there is a dispute as to the facts on a plea af guilty, the facts can only be determined by the ordinary judicial process in accordance with the rules of evidence, including the burden and standard of proof applicable in criminal cases.

FACTS RELATING TO THE OFFENDER

Sentencing not only requires knowledge of the offence but of the offender. While the evidence which proves guilt may tell a great deal about the defendant, the courts are usually called upon by the prosecution or defence (or may seek of their own volition) to receive additional information concerning the offender's character and background such as may be revealed through evidence of prior convictions, other antecedent or subsequent criminality and in presentence social, psychiatric or medical reports.

1 . Prior Convictions

In imposing sentence, the courts are clearly empowered to utilise facts relating to the offender's previous con~ictions,l~~ and before sentence is passed, the associate or clerk is inevitably asked whether the person has any previous convictions. Proof of such convictions is the least diflicult of the technical issues which must be settled before an offender can be senc

IloZbid. note 80. See also Gortog 119731 Crim.L.R. 648 where, on a plea of guilty to a charge of conspiracy to rob, the only disputed issue was whether the enterprise had been abandoned at some stage before the arrests were made. This was a question of fact going to sentence only. Following the plea of guilty, the judge heard evidence solely on the issue of abandonment and, in doing so, conformed to all the usual strictures of a jury trial, including calling for evidence from both prosecution and defence and directing himself on the burden of proof and the necessity of combo- ration.

111 Vic.: Crimes Act s. 376; N.S.W.: Crimes Act 1900, s. 445; O'Donnell v. Perkins [I9081 V.L.R. 537. See also Morris [I9141 St.R.Qd 210; Walker (No. 2) [I9151 St.R.Qd 159, Grayson (1920), 22 W.A.L.R. 39.


tenced. However, a distinction must be drawn between 'priors' and 'antecedents'. Prior convictions are those which antedate the offence in question;l12 convictions after that date and prior to the court hearing are more properly referred to as antecedents. But the term is wider still, en- compassing background information on the schooling, friends, marital status, character and general life style and history of the offender. It is the practice for prosecutors to be briefed (usually by the police) on both the prior convictions and the antecedent history of an offender.

i A person may only lawfully be dealt with as a second offender if the

I conviction on the first offence has not only been recorded before the conviction on the second, but also before the acts which constitute the facts upon which he was charged and convicted the second time.ll5 Certain 'convictions' may have to be disregarded for the purpose of sentencing

, either because, though entered upon the prisoner's records, they are not I the result of a formal recording of a conviction,l14 or because reference I to them is statute barred in some fashion.lls I

The prior criminal record of the offender is of the greatest significance I

in assessing sentence, if for no other reason than that the legislature itself has singled out recidivism as a primary sentencing consideration. First,

I there are the innumerable statutes which expressly provide for higher I penalties for the commission, by the accused, of a particular offence on a ! second or subsequent occasion. These provisions may prescribe minimum I sentences including even mandatory imprisonment. A recent and more 1 sophisticated version is the 'points system' applicable to traflic offenders I under which a defined number of convictions for related tr&c offences I will lead, automatically, to licence disqualification. Secondly, there are I statutes under which criminal liability itself (and not merely penalty) de- I pends on the existence of a prior conviction for a specified offence. Thus I all the Australian vagrancy provisions which originally derived from the I English Vagrancy Act 1824 declared that on a second conviction as 'an I idle and disorderly person', an offender achieved the status of 'rogue and I vagabond' and on a second conviction as a 'rogue and vagabond' could I

112 Wilson 119561 V.L.R. 199; Phillips 119621 V.R. 55. 113Farrington v. Thomson 119591 V.R. 286; Davison v. Plum 119601 V.R. 321. See

also, in England, Practice Direction 119661 2 AU E.R. 929, modifying Practice Direc- tion f19551 1 All E.R. 386. - - -. ..

fl~~ardculary in respect of Children's Court proceedings: Clark (1972), 4 S.A.S.R. 30, 34. As to the common law meaning of the words 'convict' and 'conviction', see Cobiac v. Liddy (19691, 119 C.L.R. 257, 271-273, per Windeyer J. See also Hepburn 119721 N.Z.L.R. 92 dealing with s. 42(4) of the N.Z. Criminal Justice Act 1954 (as amended) under which a conviction and discharge is deemed to amount to an acauittal.

516 For example, England: Children and Young Persons Act 1963, s. 16(2); and Qld.: Health Act 1937-1973, s. 130B(5): cf. Vic.: Children's Court Act 1973, s. 47. and Canada: Criminal Records Act, 1970, c. -40, s. 5(b); cf. England: ~ehabilitatih of OfEendexs Act 1974, c. 53, s. 7(2).


be sentenced as 'an incorrigible rogue'. Similarly, certain summary offences such as that of being a convicted felon in possession of a pisto1116 pre- dicate criminal liability on the existence of a prior conviction and such conviction must, therefore, be established as part of the Crown case beyond reasonable doubt.

It has been repeatedly stated by the courts that the mere fact that a man has been convicted many times is not, alone, suEcient reason for passing a heavy sentence in respect of an offence which is trivial in itself. Priors are primarily used in the assessment of the character and disposition of the offender in order to ascertain the likelihood of his reform. Most importantly, previous convictions are not to be taken into account in such a way as to inflict a second punishment on the offender, or, as was said by Lord Chief Justice Hewitt in G~mbs :~ l~

When a man has committed serious offences and has served long terms for them, it is not required that he should suffer r further severe punishment for r later offence which does not intrinsically call for it.

This proposition was approved by Lord Reid in D.P.P. v. Ottewelllls when he observed that it was wrong to extend a sentence of imprisonment beyond a term which bore some relation to the gravity of the last offence: anything additional would be punishment for past offences and improper. Priors may determine the method of disposal of the offender (i.e. application of individualised treatment or the tariff) but, except in the case of special preventive measures such as those provided in persistent or habitual offender legislation,11g a bad criminal record operates not as a progressive aggravation of the basic penalty appropriate to the offence, but as a progressive loss of credit for good character:

. . . the principal bearing that an offender's record has on the exercise of the judicial discretion as to sentence is the extent to which it does or does not justify leniency; it is trite law that a man is not to be sentenced on his record.120

The mitigating effect of good character diminishes as the offender's criminal record increases until the good character argument no longer carries weight in the face of the record of priors. However, not only the frequency of previous convictions but their seriousness, recency, and sirni- larity to the present crime are all pertinent in determining the weight to be attached to them.121

A person is entitled to deny that he has a record and previous con-

116Vic.: Firearms Act 1958, s. 31(1) See also Penfold [I9021 1 K.B. 457. 117 (1926), 19 Cr.App.Rep. 74, 75. See also Walls (1925), 19 Cr.App.Rcp. 35. 11s [I9681 3 All E.R. 153. 119Vic.: Crimes Act 1958, s. 537; N.S.W.: Crimes Act 1900-1974, s. 443; Habitual

Criminals Act 1957; S.A.: C r i m i i Law Consolidation Act 1936-1973, ss. 77a & 319; W.A.: Criminal Code, s. 661-2; Tas.: Criminal Code, s. 392; Qld.: Criminal Code s. 659A.

120Clarke (1972)' 4 S.A.S.R. 30, 35. See also Taylor (1924), 18 Cr.App.Rep. 143, Cameron v. Josey 119701 W.A.R. 66, 67, and Power [I9731 2 N.Z.L.R. 617.

121 Grayson (1920), 22 W.A.L.R. 3% Gibbings [I9361 S.A.S.R. 36, 37. See also Thomas D.A., Principles of Sentencing, London, 1970, 39-47 and 174-183.

190 Melbourne University Law Review [Vol. 10, Sept. ,751

victions should never be utilised by sentencers in circumstances which prevent them being challenged by the defendant.lZ2 The fact that he was convicted (or acquitted) of a crime in a certain court is normally established by his own admission,123 but not by par01 evidence of persons claiming to have been present at the earlier conviction.124 If the fact of prior criminality is disputed, the Crown is obliged to prove the conviction in a proper manner before it can be taken into account in sentencing.125 However, the task is expedited by a variety of statutory provisions which permit the conviction to be proven as a matter of record.lZ6 Other forms of proof may be allowed in special purpose legislation, e.g. provisions relating to motoring offences which allow proof of prior convictions by reference to police or Motor Registration Branch certificate or licence

\

endorsement.127 Where the court is not satisfied with the proof of the I priors or where the alleged previous convictions in dispute are trivial or

irrelevant, the court must disregard them after expressly stating so.12s

In indictable offences, when a verdict of guilty has been returned, the 1 jury remain undischarged until the prisoner's priors, if any, have been put

to him. If he denies any of them, the Crown may elect to adduce evidence to prove the convictions. If that course is adopted, the jury, without being

I resworn, are charged to enquire whether the allegation of prior convictions is made out. If the prior convictions are denied after entry of a plea of guilty for a subsequent offence and the Crown elects to have them formally

1 proven, a special jury of twelve for the purpose may be empanelled.lZ9 The authorities do not expressly settle the point, but it is submitted that the quantum of proof in relation to priors can only be that of proof beyond

I reasonable doubt.130

122 Hmtings v. Ostle (1930), 29 Cox C.C. 177. 123 Arthur (1913), 13 S.R.(N.S.W.) 267; Saunders (1926),.26 S.R.(N.S.W.) ?42;

Ex parte Kelly; re Teece [I9661 2 N.S.W.R. 674, 677-8. Entnes in a Petty Sessions register book of admissions by a prisoner regarding prior convictions are prima facie evidence of such convictions: Marsden (1909), 15 A.L.R. 643.

124 Mash v. Darley 119141 3 K.B. 1226; Knight v. Porter [I9451 V.L.R. 208; Rakay v. MacFarlane [I9611 N.S.W.R. 1121.

126 Ex Parte Kelly, ibid. nqte 123 at 678. 126C'wlth.: State and Territorial Laws and Records Recognition Act 1901-1964,

ss. 17 & 18; Vic.: Crimes Act 1958, ss. 378 & 401-2, Evidence Act 1958, ss. 87, 88 & 89, Justices Act 1958, s. 91(15), Magistrates Courts Act 1971, ss. 24 & 25; N.S.W.: Crimes Act 1900, s. 445, Evidence Act 1898, s. 23 & 23a; S.A.: Criminal Law Consoli- dation Act 1935-1973, s. 314, Evidence Act 1929-1974, s. 42; W.A.: Evidence Act 1906-1974, s. 47; Tas.: Evidence Act 1910, s. 76; Qld.: Criminal Code, s. 635, Evi- dence and Discovery Acts 1867-1972, ss. 19, 32, 33, 34 & 35.

127 For example, Vic.: Motor Car Act 1958, s. 92(l) (a). 128 Campbell (1911 ), 6 Cr.App.Rep. 131; Buttevwasser 119471 2 All E.R. 415, 417

per Lord Goddard C.J.; Ex parte Kelly, ibid. note 123. 129 Vic.: Crimes Act 1958, s. 395; W.A.: Criminal Code, s. 648; Qld.: Criminal

Code, s. 630. 130 Certainly, in cases in which the previous conviction is a 'necessary ingredient'

in a subsequent crime, not only must it be specifically alleged in the indictment, but it must be proven beyond reasonable doubt as part of the prosecution case: Penfold [I9021 1 K.B. 547, but note special procedure set out in the statutes cited above, note 129.


Proof of identity of the person before the court with the person described in the certificate of conviction is also necessary and usually is obtained by admission. Four Australian States have adopted the English legislation allowing an expert's &davit connecting the identity of two persons by matched fingerprints to be used as a formal but simple means of meeting this requirement.131 The only other alternative is to call a witness to prove that the person mentioned in the conviction is the same as the defendant, but while evidence of a person present at the first conviction may establish identity, it cannot be used to prove the conviction itself.132

2. Allegations of other criminality

In addition to admitted or proven convictions for prior offences, the sentencer may be asked to accept and act upon allegations of other prior unprosecuted criminality or to take into account criminal conduct by the accused which is alleged to have occurred between the time the current offence was committed and the date upon which the offender's guilt was established and he was brought to face sentence. The general rule operating here is that, with the exception of admitted or proven prior convictions, admitted pending charges, and subsequent offences (but only insofar as they are evidence of the offender's rehabilitative potential), criminal conduct which has not formed part of the conviction cannot be taken into account by the trial judge in imposing punishment. The rationale for omit- ting such conduct from consideration in assessing the appropriate punishment is that no person ought to be punished for criminal behaviour in respect of which he has not been charged and ~0nvicted.l~~

It has been the practice in England, since at least the turn of the century, for the courts, when fixing sentence, to take other admitted but as yet unprosecuted offences into consideration. This means, in practical terms, that the court can impose a more severe sentence than it would if it were dealing with the defendant only for the offence with which he has been charged (but it may not exceed the maximum for that offence). On the other hand, the offender obtains a lesser sentence than would have been imposed if each pending charge was proceeded with separately. Though, as Cross has pointed out,134 the practice was in complete oppos- ition to nineteenth century penal theory, according to which an exact and deserved punishment should be imposed for every separate offence, it was not long before the new Court of Criminal Appeal, in Syres, afErmed that it was proper (and indeed desirable) that all pending charges of a similar

131 N.S.W.: Evidence Act 1898-1973, s. 23A; S.A.: Evidence Act 1929-1974, s. 43a; W.A.: Evidence Act 1906-1974, s. 47(l) (a); and Tas.: Evidence Act 1910, s. 77 following the English Criminal Justice Act 1948, s. 39.

132cf. Drabble (1909), 53 Sol.Jo. 449, with Mash v. Darley [I9141 3 K.B. 1226. 133 Burton (1941), 28 Cr.App.Rep. 89. 134Cross, R., The English Sentencing System, London, 1971, 66.

. .- - - - --


nature should be taken into account by the court in sentencing so that one comprehensive sentence could be imposed, provided always that the other

I offences were ones which the prisoner admitted and desired to have taken into ac~0un t . l~~ The power to take outstanding charges into account is discretionary in nature and similar as well as dissimilar offences may be e~c1uded.l~~ If the offences are ones which the sentencing court would not have had jurisdiction to try itself they are barred from c~nsideration.~~~ In England the procedure is based on convention and has no statutory foundation and the defendant in respect of whom offences are taken into account in sentencing is not entitled to plead autrefois convict if he is subsequently indicted in respect of any of them. Normally, however, no proceedings follow on them.13S

The evidentiary basis upon which unprosecuted offences are taken into account as sentencing factors is simply that they are admissions and do not require further proof. But, because admissions are susceptible to pressure, the English courts have been at pains to stress that before an offender is sentenced on the basis that he has committed other unprosecuted offences, he must, in open court, freely and personally admit the other offences and ask for them to be ~0nsidered.l~~ The courts have acknowledged, on the other hand, the need to weigh any objections expressed by the prosecution, including a denial that the defendant committed the offences in question.140

In Australia only New South Wales and Tasmania have legislatively formalised the practice of taking outstanding charges into account.141 In those States, when a person is convicted on indictment, the trial judge may take additional unprosecuted offences into consideration provided that the Crown consents and the accused clearly admits his guilt in respect of the additional offences and asks that they be taken into account. The Tasmanian legislation is modelled on that of New South Wales, but differs to the extent that it allows summary as well as indictable offences to be

135 (1908), 1 Cr.App.Rep. 172. See general explanation d the practice in Nichol- son (1947), 32 Cr.App.Rep. 98 and Margrave-Jones, R.D. Taking Other Offences into Consideration - The History of the Convention' (1959) Crim.L.R. 18, 108 8r 197. For statistjcs on the English practice see White, S., Newark, M., and Samuels, A., 'Offences Taken into Consideration' (1970 Crim.L.R. 311.

136 McLean (1911), 6 C ~ . A ~ ~ . R ~ ; . 26; Smith (1921), 15 Cr.App.Rep. 172; Lloyd (19231, 17 Cr.App.Rep. 184.

137 Warn 119371 4 All E.R. 327; Simms [I9531 2 AU E.R. 599. 138 Smith, ibid. note 136 at 173; Nicholson [I9471 1 All E.R. 535; Neal [1M91

2 All E.R. 438. See also Silverman (1936), 25 Cr.App.Rep. 101. 139 See generally Archbold, Criminal Pleading, Evidence and Practice, 38th ed.,

London, 1973, paras. 635-7. 140 Forbes (1968), 52 Cr.App.Rep. 585. 141 N.S.W.: Crimes Act 1900, s. 447B (introduced in 1955); Ty.: C e i n a l Code,

s. 390 (introduced in 1973). The Victorian Law Refom Commissioner m his Report No. 2, Criminal Procedure (Miscellaneous Reforms) Melbourne, 1974, Part V, has recommended that legisldon similar to that in force in N.S.W. be adopted. In South Australia the courts apparently follow the English non-statutory practice regarding

Fact-finding for Sentencers

taken into consideration and also in that (unlike the English practice) it permits the maximum penalty applicable to the offence for which the defendant awaits sentence to be exceeded when other offences are taken into account. In neither State does taking of an offence into consideration rank as a conviction in respect of that offence, but the fact that other admitted offences were weighed in the sentence may be certified by the court and proven in evidence in subsequent proceedings. Immunity from further proceedings is granted the accused in respect of offences taken into account unless the conviction on the original charge is set aside or quashed.

Thus, at least in New South Wales and Tasmania, a sentencing judge may have to consider both the offender's claim that he has committed other unprosecuted offences (which he now desires to have taken into account) and a prosecution contention that, in assessing the person's criminal record, the sentencer should not only have regard to prior convictions but also to other criminality admitted and taken into account at an earlier point of time. The mode of proof of prior convictions is well established and the legislation in both States indicates that the same procedure may be adopted in order to prove that offences have previously been taken into a~c0unt . l~~

Convictions for crimes committed subsequent to the offence for which the defendant is about to be sentenced cannot be taken into account as 'previous convictions' to increase the penalty which would otherwise be imposed.14a They may, however, be. looked at as possible grounds of mitigation,144 and are relevant as 'antecedents' in determining the non- parole period,146 or meeting defence evidence of subsequent reformation.146 Such subsequent convictions may be proven by admission, by certificates of conviction under the Evidence Act but not under statutory provisions dealing expressly with proof of previous convictions (e.g. s. 376 and 395 of the Victorian Crimes Act 1958).

taking offences into account: Rainbird v. Scamuels (1972), 4 S.A.S.R. 187; Power v. French (1973), 6 S.A.S.R. 100; Reiner (1974), 8 S.A.S.R. 102. It appears that the practice is unknown in the remaining Australian States. See, White, S., 'Taking Offences into Account in Australia'. Crim.L.R. [in press].

142 N.S.W. : Crimes Act 1900, s. 447B(5); Tas. : Criminal Code s. 397(7). 143 Wilson f19571 V.L.R. 199; Hutchins (1957), 75 W.N.(N.S.W.) 75; Phillips

[I9621 V.R. 55; Poulton [I9741 V.R. 716; Kme [I9741 V.R. 759. In Kane the Full Court suggested that evidence of subsequent offences is receivable on appeal against sentence under s. 574 of the Victorian Crimes Act 1958. The proviso to that section would prevent the sentence being increased in the light of this evidence but the proviso does not exist in respect of an appeal by the Attorney-General under s. 567A, and this might provide a means for the Crown to by-pass the restriction on treating subsequent offences as priors.

144 Hutchins, ibid. 145 Poulton, ibid. note 143 at 720-1. 1413 Kane, ibid. note 143 at 766.


In his dissent in Wilson, Lowe J. read the equivalent of s. 376 as enabling legislation and asserted that the judge was entitled to have regard to the prisoner's circumstances including his other convictions right up to the time sentence was imposed: 'The whole question in this case is whether the Judge should disregard those facts and punish the prisoner as if they did not exist. . . With the light before him, why should he shut his eyes and grope in the darkY147 And, in Phillips, Sholl J. complained that the sooner the interpretation in Wilson was legislatively re- versed, ' . . . the sooner will the courts be able to deal with accused persons according to their real merits instead of upon a basis which, in some cases, may be unnecessarily a r t i f i~ ia l . '~~~ His Honour was further of the opinion that the general provisions in s. 507 of the Victorian Crimes Act 1958 regarding preparation of presentence reports at the request of the courts were insufficient to overrule Wilson's case. Nevertheless, it was later decided by the Victorian Full Supreme Court in Poulton that not only might the majority judgment in Wilson have to be reconsidered but also that material showing subsequent conduct, including subsequent offences, could properly be placed before the court in presentence reports. This information could not be used for the purpose of increasing sentences beyond the maximum that would otherwise be imposed, but might be utilised for other purposes such as assessing parole suitability and deciding the concurrency of sentences.149

Apart from proven prior or subsequent convictions and admitted pending charges taken into account, the courts, in enquiring into an offender's background, may become apprised of other allegations of the defendant's criminality. Such allegations, even if capable of proof: must play no part in determining sentence. An example of this exclusion is found in the case of HansenlKo in which the appellant was charged and convicted of assault and robbery. He was released on bail but absconded and remained missing for some thirteen months. When he was re-arrested the police discovered him in disguise and in unlawful possession of firearms and explosives. It was clear that in sentencing him for the assault and robbery the trial judge had regarded the prisoner's behaviour after absconding and on re- arrest as meriting additional punishment and had given effect to that view.

147 [I9561 V.L.R. 199, 201. 14s 119621 V.R. 55, 56. 149 rig741 V.R. 716. 720. 150[i961j N.s.w.R.' 929. See also Baker v. Bond [1929], S.A.S.R. 388 and Smith

(1946), 63 W.N.(N.S.W.) 231. Adams, Criminal Law and Practice in New Zealand, Wellington, 1971, para. 3179, suggests in his discussion of Jennings v. Police [I9651 N.Z.L.R. 382 that a court may take other similar offences into account whether the accused desires or not provided that there is evidence that the accused has previously admitted those offences (e.g. to the police) and that the admission can be proven. In Hepburn [I9721 N.Z.L.R. 93 the court warned that a probation officer should not refer in his report to an offender's prior offences when, by statute, the offender was deemed to have been acquitted of those offences.


The New South Wales Court of Crimiial Appeal held that the trial judge ought not to have taken those matters into account since they could have formed the subject of separate charges.

Courts of Criminal Appeal have reacted in a similar fashion to cases in which the trial judge has taken into account the fact that the accused perjured himself during the trial. If an accused person perjures himself while giving evidence then he ought to be charged with perjury and if convicted, punished. However, the punishment should be imposed subsequent to the conviction for perjury and not as a part of the punishment for the conviction which the perjury was aiming to prevent.I5l

Other allegations of fact adverse to the defendant may be made at the sentencing stage. Special problems may arise when such allegations are contained in formal presentence reports and these will be discussed separately. Adverse information concerning the antecedents of the defendant may be taken into consideration without being formally provenlbz and may be used to determine the quantum of punishment unless challenged and contradicted by the defendant, in which case it should be put to proper proof or ignored. In Van Pelzls3 the English Court of Criminal Appeal warned that counsel for the prosecution should see that police witnesses giving evidence after conviction were kept in hand and that they

I did not make allegations which were incapable of proof and likely to be denied by the offender. Thus a police officer in giving evidence of a prisoner's antecedents after conviction may properly give evidence that the offender is an associate of convicted thieves provided that the officer confines his evidence to matters that are within his own knowledge; he may not, however, make general unsupportable observations of a derogatory nature about the defendant's associates reputation or violent tempera- ment.15* In the Court of Appeal decision in Robinsonls5 the prisoner was charged and convicted of unauthorised possession of cannabis. Subsequent to the conviction the trial judge heard evidence from a policeman to the effect that the prisoner was extensively involved in the trafficking of that particular drug. The Court of Appeal did not question the propriety of the trial judge entertaining such considerations and from that it can be assumed that the court approved of the practice of taking such matters into account.

151Richmond [I9201 V.L.R. 9: Timms [I9211 V.L.R. 503; Quinn (19321, 23 Cr.App.Rep. 196; Smith, ibid.; Whitlam [I9491 Q.W.N. 2. See also Burton (1941), 28 Cr.App.Rep. 89 - alleged perjury by prisoner's wife wrongfully taken into account.

Is2 Campbell (1911), 6 Cr.App.Rep. 131; Giford (1947), 49 W.A.L.R. 97, 99 - it IS not necessary that the testimony be given on oath or comply mth stnct rules of evidence; Roche (1944), 30 Cr.App.Rep. 29; Marquis (1951), 35 Cr.App.Rep. 33 - the court may accept hearsay evidence, cf. Bates (1934) 28 Q.J.P.R. 79, 86-7.

(1943), 29 Cr.App.Rep. 10. l54Crabtree (1952), 36 Cr.App.Rep. 161; Bibby [I9721 Crim.L.R. 513. la5 (1969, 53 Cr.App.Rep. 314.

196 Melbourne University Law Review [Vol. 10, Sept. ,751

It is submitted, however, that in considering the question of whether a drug offender convicted of possession of an illicit drug was involved in the tracking of that drug, the court was arguably only concerning itself with the motive or purpose of the possession rather than taking into account, as an aggravating element, the fact that the offender was guilty of a separate offence distinct from that for which the court was imposing punishment. The court was not therefore imposing greater punishment because of other criminal conduct, but was merely examining the nature of the offence for which the prisoner was convicted by looking to his motivation or objectives.

The importance of the decision is that the Court of Appeal then went on to consider what were the procedural and evidentiary requirements to which the Crown was subject in presenting such allegations:lS6

. . . in the view of this Court such evidence should not be admitted unless the officer giving the evidence can speak from first-hand knowledge without reliance on hearsay or records, and unless the evidence is sufiiciently pa.rticularised to make it possible for the accused to challenge it. The vice in the present case of the allegations made was that in their general terms it was quite impossible for them to be effectively challenged, and the admission of such evidence is a clear and obvious injustice. Further, this Court thinks that as a matter of practice where the prosecution is in possession of evidence of trafficking, which evidence is not to be led at the trial, notice should be given to the defence of that evidence, thus giving the defence an oppodunity to consider it and prepare to challenge it if it wishes. If notice of such evidence is not given, the result will clearly be to give the trial judge a discretion as to whether he will admit or reject the evidence when tendered.

In reading this decision together with the South Australian cases mentioned earlier in relation to fact-finding on a plea of guilty, it may be said that not only at sentencing does the Crown bear the burden of proof in presenting prejudicial allegations against an offender, and not only must those allegations be proven beyond reasonable doubt, but also that notice of the allegations must be given to the defence prior to their being presented in court and additionally, that the allegations must be presented in such particularity as to be capable of being rebutted by the defence. One of the requirements mentioned in Robinson is that in presenting the allegations the evidence should not violate the rule against hearsay. It should be recalled that the South Australian Supreme Court in Beresford suggested that a similar evidentiary rule would apply in sentencing proceedings:lS7

This is not an occasion when there was any onus thrown upon the appellant to prove the facts. If there was any such onus then it is open to doubt whether a self-serving statement made by him would be of any avail . . .

There is, consequently, definite authority to indicate that the ordinary rules of evidence should govern the mode of proof at sentencing. The

At 318. See also Sargeant 119751 Crirn.L.R. 173, 174. 157 Text at note 109 above.

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pertinent question is, however, whether they should, in all cases, be as vigorously applied at the dispositional stage of the criminal trial as they are at the adjudicatory stage, so that even the technical operation of the rules of evidence, such as that in Myers v. D.P.P.,lK8 w0111d bewme a feature of proceedings concerning punishment. This is certainly not the case at the moment, but it is submitted that courts are well on their way to introducing rational restraints on methods of proof in sentencing in accordance with accepted evidentiary principles even though at present they are unwilling to be tormented by a purely technical application of evidentiary rules where no useful purpose is being served.

An interesting recent legislative manifestation of this development is to be found in the Tasmanian Criminal Code Act (No. 4) of 1973 which in amending s. 386 of the Code, now provides that:

(7) Before exercising any of the [sentencing] powers conferred on the court . . . the judge may receive such information, in oral or documentary form, as he t h i i fit: and, in so doing, he is not bound by any rules of evidence. (8) It is the duty of the judge to ensure that the convicted person has knowledge of, and the opportunity to challenge, any information received by the judge under subsection (7) of this section. (9) Subsection (8) of this section d m not apply to information furnished by a medical practitioner that the judge considers should not, in the interests of the pe rm convicted, be disclosed to hi . (10) If the person convicted challenges the truth of any information received by the judge under subsection (7) of this section, the judge may require that information to be proved in like manner as if it were to be received at a trial.

These provisions are in line with the authorities to date, although, to be entirely consistent with Robinson and the South Australian cases, subsection (10) should be expressed in mandatory terms. Nevertheless the Tasmanian effort at setting out more derailed procedural guidelines at sentencing (though by no means comprehensive) is an advance on the type of blanket authority found in s. 650 of the Queensland Criminal Code, or s. 656 of the W.A. Code, viz.: 'The Court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed.'

3. Presentence reports

Subsection (9) of s. 386 above, in permitting restrictions to be placed upon an accused's right of access to and opportunity to challenge information received by the judge or magistrate, highlights one of the special problems posed by the use of formal presentence reports as a sentencing aid.

Presentence reports, or social inquiry reports as they are known in England, are extra-judicial documents normally prepared by probation

158 119651 A.C. 1001.

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officerslS9 in order to supply courts with social background information on the offender and, hopefully, to assist the sentencer to determine the most suitable means of dealing with the case. The same type of information may come from other sources and may take the form of medical, psychiatric and police reports.leO

The merit or otherwise of the power to order presentence reports, when they should be obtained, what should be their proper content and whether they should contain specific recommendations for sentence have all been canvassed elsewherelel and are beyond the scope of this paper, save for the observation that, as measured by the extent of their use and the degree of acceptance of recommendations contained in them, presentence reports are having a profound effect on sentencing decisions.le2 In Eng- land a number of statutory provisions make it mandatory for magistrates to consider social inquiry reports before imposing sentencela3 and in Aus- tralia it has been held that failure by a court to exercise its power to obtain a presentence report on the background of the defendant may vitiate the exercise of the sentencing discretion.ls4

1" For example, under Vic.: Crimes Act 1958, s. 507(6), Children's Court Act 1973, s. l l ( l ) (b) ; N.S.W.: Crimes Act 1900, s. 560A; S.A.: Offenders Probation Act 1913-1971, s. 6; Juvenile Courts Act, 1971-2, s. 41; W.A.: Offenders Probation and Parole Act 1963-1969, s. 8; Tas.: Probation of Offenders Act 1973, s. 5; Qld.: Offenders Probation and Parole Act 1959-71, s. 6( 1); England: Powers of the Criminal Courts Act 1973, ss. 45 & 46.

l6oFor example, Vic.: Alcoholics and Drug Dependent Persons Act 1968, ss. 13(8) & 14(2); N.S.W.: .Child Welfare Act 1939, ss. 84 & 89(2). In Giflord (1947), 49 W.A.L.R. 97 the tnal judge considered a police report on the defendant's character and activities but did not show the report to the defendant or his counsel who, on appeal, unsuccessfully complained of the report's inaccuracy and their lack of opportunity to chal1en:e or contradict i t Cf. Timbs, Tasmania, unreported, 29 March 1974, No. 11/1974 - Insofar as the Ipresentence] report was unsupported by sworn evidence and contained disputed matters, it should have been ignored', per Green C.J. In Nuku [I9691 N.Z.L.R. 343, 345, the New Zealand Court of Appeal held that in the absence of specific statutory authority (as existed in the case of probation officers' reports) the court should not receive or act upon a 'Police Report' on an offender awaiting sentence.

161 See, for example, Home Office, Report on the Interdepartmental Committee on the Business of the Criminal Courts (Streatfeild Committee), London, H.M.S.O. 1961, paras. 307-429; Thomas, D. A., Principles o f Sentencing, London, 1970, 318-21; South Australian Criminal Law and Penal Methods Reform Committee, First Report: Sentencing and Corrections, Adelaide, 1973, 52-60; Perry, F.G., lnformation for the Court: A New Look at Social Inquiry Reports, Cambridge, 1974; Daunton-Fear, M.W., 'Social Inquiry Reports: Comprehensive and Reliable?' (1975) 15 British Journal of Criminology 128. See also Luhey v . Sanderson [I9591 Tas.S.R. 17 - court considered appropriateness of probation officer making a suggestion regarding sentence - Held that such a suggestion was proper.

162 Ford, P., Advising Sentencers, Oxford, 1972; White, S., 'The Effect of Social In- quiry Reports on Sentencing Decisions' (1972) 12 British Journal o f Criminology, 230; Gibson, R. E., Recommending Sentence - N.Z. Probation Officers' Presentence Reports', (1973) 6 Australian and New Zealand Journal of Criminology 231.

la For example, s. 12(3) of the Criminal Justice Act 1961 (borstal recall) and s. 19 and 20 of the Powers of Criminal Courts Act 1973 (first custodial sentence). Note also the Home Secretary's power to compel courts to consider social inquiry reports before sentence: Powers of Criminal Courts Act 1973, s. 45.

164 Murray V . Harris, ibid. note 32. See also Eckhardt (1971), 1 S.A.S.R. 347, 353.

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In Poulton it was pointed out that the presentence reports could be used to bring before the court, amongst other things, information relating to subsequent offences, which was matter ordinarily excluded as the result of the decision in Wilson's case. While it is true that the information cannot operate directly to increase sentence, it can easily achieve that result in other ways.IB6 Of much greater significance, however, is the suscept- ibility of reports to gross factual error. The presentence report is, in theory, based on an extensive out of court investigation of the subject's life style and background and relies heavily on particulars gleaned from interviews with others. This secondary recounted evidence would, if not admitted by the defendant, be excluded as hearsay (except insofar as the conclusions of the report may be admissible as an expression of expert opinion, e.g.

I that of a psychologist, psychiatrist or doctor). Both adult and children's courts commonly relax exclusionary rules of evidence at the dispositional stage so as to permit the probation officer to report his findings albeit in a hearsay form.lB6 But in some jurisdictions the defendant's ability to challenge the truth of adverse statements contained in a presentence report may be handicapped by the refusal of the court to grant him access to the report itself. Disclosure is largely a matter of judicial discretion, and

I statutes rarely grant absolute access.ls7

1 The arguments for and against disclosure need not be reworked here. The compelling conclusion, when viewed from a civil liberties perspective, 1 is that the right of the defendant to contest the truth of the contents of a report which is adverse to him and likely to be used in determining the quantum of punishment, overrides the value of protecting the anonymity of informants, the need to avoid the risk of traumatizing the defendant by

166 See text above, at note 149. 166 See comments by Lord Devlin in OlJcial Solicitor v. K . [I9651 A.C. 201, 237-8,

242. 167 For example, Vic. : Children's Court Act 1958, s. 25(2); S.A.: Juvenile Courts

Act 1971-2, s. 41(2); Qld.: Offenders Probation and Parole Regulations 1959, reg. 6; England: Powers of Criminal Courts Act 1973, s. 46. See also Webb [I9711 V.R. 147, 152; Adams, J.E., 'The Second Ethical Problem in R. v. Turner: The Limits of an Advocate's Discretion' [I9711 Crim.L.R. 252. See also the practices in relation to receiving social inquiry reports described by White, S., 'The presentation in Court of Social Inquiry Reports' [I9711 Crim.L.R. 629. In Tasmania under s. 31 of the Alcoholic and Drug Dependency Act 1968 the defendant's right to obtain access to and to challenge a medical report used in sentences involving treatment for alcoholism is set out in detail, viz.,

(3) .Where, in pursuance of the di~ections of the court, any such [medical] report . . .IS tendered m ev~dence, otherwise than by or on behalf of the person on whom it is made, then - (a) if that person is represented by counsel, the court shall cause a copy of the

report to be given to his counsel; (b) if he is not so represented, the court shall cause the substance of the report

to be disclosed to him; and (c) in any case, he, or the person by whom he is represented, may require the

medical practitioner by whom the report is signed to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by him or on his behalf.

.- r- .- - - -- - ,. - -- -


exposing him to unpleasant facts, or the need to preserve a therapeutic relationship.les If, because of youth or unusual disability, the defendant needs to be protected from his vulnerability, a case may be made for legal representation and disclosure only to counsel, but total non-disclosure is unacceptable. Were it not for the fact that the information is contained in a formal presentence report called for by the court itself, there would be no difficulty in arguing that, as a concomitant of the adversary system (even at the sentencing stage) the defendant should be given an opportunity to dispute facts prejudicial to his interests and that the judge, in determining where the truth lies, should apply the same formalities in testing the weight, relevance and cogency of the evidence on the challenged sentencing issue as he would have applied earlier in the trial proper.

The courts have, in fact, acknowledged the right of the defendant to challenge the contents of the report, subject to their general discretion to withhold the information (a discretion which, it is submitted, should be exercised sparingly). In the Victorian case of Webb1@ the Full Court said that 'if a trial judge, in the exercise of that discretion is of opinion that the report should be disclosed to the parties, it should, in our view, be done before the sentence is pronounced in order that the parties may have an opportunity at that stage of dealing, if they so desire, with any of the matters stated in the report'. The principles which govern any such 'dealing' are, it is submitted, identical to those which were applied in Van Pelz, Robinson and the South Australian cases discussed earlier.170

t Indeed, it should be noted that a similar view was taken in the Canadian case of Benson and Stevensonlrl in which the British Columbia Court of

I Appeal was hearing an appeal against sentence, inter alia, on the ground that the magistrate had taken into consideration a probation oficer's re

I port which the appellants had neither seen nor had any opportunity of answering. The court held, following the English cases, firstly that a pre-

I sentence report from a probation officer, in as much as it contained factual

lea See, generally, Criminal Law and Penal Methods Reform Committee of South Australia, ibid. note 161. Bartholemew, A.A., 'Some Problems of the Psychiatrist in Relation to Sentencing' (1973) 15 Criminal Law Quarterly 325, 34:-8, argues for the total confidentiality of the psychiatrist's report on the ground that . . . when the

I report is not treated as confidential . . . the prisoner feels that he is being sentenced by the psychiatrist - perhaps the person who will Iater be responsible for the treatment of the offender! (at 347).

l@ [I9711 V.R. 147, 152. 170 Sec text at notes 153-8 above. 171 (1951), 13 C.R. 1, 10-1 1. For the American position see Williams v. New York

337 U.S. 241 (1949) - the due process clause of the 14th Amendment does not fully apply to the sentencing stage of the criminal trial: information relied upon in sentencing need not be restricted to that given in open court by witnesses subject to cross examination; Mempa v. Ray 389 U.S. 128 (1967) - accused has a right to counsel at tha sentencing stage. See also Specht v. Patterson 386 U.S. 605 (1967); U.S. v Weston 448 Fd.R. (2d) 626 (1971) and Note, 'Disclosure of Presenten- Re.ports: A Con- stitutional Right to Rebut Adverse Information by Cross Examinahon', (1971) 3 Rutgers - Camden L.J., 11 1.

Pact-finding for Sentencers 201

allegations prejudicial to a defendant, could not be placed in a higher or different category than a presentence statement made by a police officer, and that the same principles should be applied to both. Secondly, it was held that a convicted person ought to be informed of the substance of the probation officer's report insofar as it is detrimental to him, so that he might have an opportunity to accept the allegations made or to explain or deny them. Thirdly, if the report contained prejudicial observations which the court considered relevant and likely to influence sentence and the truth of this material was denied by the person to be sentenced, proof of the allegation should be given in open court where its accuracy could be tested by cross-examination. Alternatively, if the court did not consider the matter of sufficient importance to justify formal proof, then it should be ignored as a factor influencing sentence.lT2

OTHER FACTS

Facts not directly related to the offender or his offence may also be relevant at sentencing: for example, information concerning the prevalence and nature of the crime, policies regarding remissions or parole, and the availability or otherwise of correctional or treatment services.

1. Prevalence and nature of the crime The prevalence of crime of a certain class is acknowledged as a valid

criterion when ounishment is to be fixed.173 The theorv is that orevalence - - ..- .I - -- I - -----

of a particular crime, albeit only local prevalence, adds to the gravity of the crime and iustiiies sentencing uo to and oerha~s a little bevond the - A A L-

range of the normal sentence for the particular ~0nduc t . l~~

But how is the court to determine prevalence? In Piercey the Victorian Supreme Court asserted that the court was entitled simply to rely on its I general knowledge, but this leaves a great deal to be desired, for as Thomas ! has said,l7"1f the prevalence of the offence is to have a critical effect on the sentence, it should be established with as much care and particularity as other facts proved at the trial.'

In a number of cases the Australian courts, in attempting to set an appropriate penalty, have called for and have been supplied with statistical

172Even where the facts alleged in the presentence report are established to the satisfaction of the court, the sentencer may be restrained from giving full effect to the implications of its findings; there is, for instance, a l i i on the extent to which a finding of mental illness or dangerousness may be taken into account in determining the quantum of imprisonment: Gascoine 119641 Qd.R. 539; Nell 119691 2 N.S.W.R. 563: c f . Kocan 19661. 34 W.N. (N.S.W.1 588.

l i s ~ a g e n (1916)~' 33 w.N.(N.s.w.~ 106; Giles v. Barnes [I9671 S.A.S.R. 174, 181; Cuthbert [I9671 2 N.S.W.R. 329, 333: Peel r19711 1 N.S.W.L.R. 247. 257 & 262: Piercey [I9711 v.R.-647, 650-1; williscroft [197fi V.R. 293, 301. See also ~treatfeild Committee Report, ibid. note 161 para. 280.

174 Thomas, D.A., Principles of Sentencing, London, 1970, 15; Cross, R, The English Sentencin~ Svstem. London. 1971. 144-7.

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data on the sentences imposed in recent periods for particular offences176 and have emphasised that where, in determining sentencing facts, judicial notice is inadequate (including knowledge derived from an analysis of legislative objectives) and recourse to standard works of reference is insuflicient to resolve matters in issue, then the required information should be supplied by evidence in the usual way.lT7

The South Australian Court of Criminal Appeal has described the operation of these principles in the context of modem drug control legis- 1ati0n:l~~

Prosecutions of the kind that led to the conviction under appeal are different in important respects from many other k i d s conducted in our courts. Speaking generally, the central feature of most oriminal prosecutions is the conduct of the accused, and the characteristics of the things - tangible and intangible - and the consequences for the persons, to whioh that conduct relates, or upon which it centres, are readily understood or likely to be adequately described or explained in the course of the evidence led to prove the charges. But prosecutions with respect to dangerous drugs, in our view, stand altogether d8mently. A judge cannot begin to assess the evil or harm caused to society or to individuals by drug taking, drug handling, or drug distribution, until there are placed before him adequate details of the composition and strength d the drug in question and an authoritative and reliable description of its likely effects - long term and short term, psychological and physical. In some cases, it may be important for the judge also to be informed, in general terms, of the magnitude of the illegal operations of manufacturing or importing and supplying the dangerous drug to members of our community, and the difficulty of the control of those operations by law enforcement agencies. Plainly, evidence upon many d these topics will not infrequently be irrelevant in ~ the proof of the charge, but when the question of sentencing arises, it will be essential for evidence of this kind to be placed before the judge.

The prosecution which normally is minimally involved in addressing the court on sentence may thus have an extended role to play:

It seems to us that it is the responsibility of the prosecution, in the fist instance,

I to lead such evidence as is in their possession and will enable the sentencing judge to form an appreciation, not only of the prisoner's conduct, but also of the drug with which the conduct was concerned. In many cases, the presentation of such evidence will entail the calling of an expert who can offer an up-to-date evaluation of the plethora of facts and opinions emanating from doctors, scim- tists and social workers month by month all over the world. It is, in our view, ullsatisfactory for a judge to find himself left to perform his own research and formulate his own opinions and conclusions upon such arcane matters. What we can read in books, journals and reports about drugs is no doubt useful as background and as providing the basis for suggestions for further enquiry, but it would, in our view, be entirely wrong if those readings were to take the place of sworn expert testimony, properly presented and tested.

17% Brebner v. Hersey 119631 S.A.S.R. 1, 11; Williscroft, ibid. note 173. As to the propriety and utility of such a course being followed see note in (1973) 47 A.L.J. 548, but note criticism in O'Donnell (I974), 7 S.A.S.R. 114.

177 Peel; Piercey, ibid. note 173. 178 Beresford, ibid note 108 at 449-50.

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And, for its part, the defence must be prepared to support its plea in mitigation with relevant admissible evidence:

In the nature of things, it is probable that in many cases full details of a convicted person's addiction to or propensity towards the use of drugs of dependence can only come from the defence. If the judge is going to be invited to take the view that a particular drug is addictive or nonaaddictive and he is asked to receive and to act upon a report or other publication, we are of the opinion that that material should be tendered through a properly qualified witness whose testimony will enable the judge to appraise it.

2. Policies regarding remissions or parole

Sentencers are precluded from increasing sentences in order to counter- act general legislative policy or anticipated Executive action.lgg 'This principle is reflected in the rule that the fact of the existence of a remissions policy or a parole system is, in general, irrelevant to the sentence

, to be imposed. A judge should neither increase the sentence by taking into account potential remissions for good conduct or the possibility of release on parole,lsO nor abdicate his duty to give proper weight to the prisoner's favourable antecedents by throwing the whole responsibility of considering them onto the Parole Board.lS1 In TurnerlS2 an exception was recognised in respect of sentences for treatment purposes when the Court of Appeal approved a sentence of five years in order to guarantee, after allowance for remissions, a period for psychiatric treatment in prison of at least three years.

A second exception exists in relation to the fixing of non-parole periods since it has been held in New South Wales and South Australia that in setting a non-parole period the court ought to take into account the likely length of remissions so as to avoid the prisoner being released uncon- ditionally before being considered for supervised release by the Parole Board.lS3 On the other hand, in determining whether a non-parole period should be set at all, the relevant facts are the antecedents of the prisoner and not the policy of the Board in granting or refusing parole.lS4

Breckenridge [I9661 Qd.R. 189; Ryding (1971), 1 S.A.S.R. 408, 410. See also Harris [I9671 S.A.S.R. 316 - Government policy not to carry out whippings was an 'adequate reason' under S.A.: Criminal Law Consolidation Act 1935-66, s. 52a, for not making the order of whipping but, instead, increasing the period of imprisonment.

lsORemissions: Maguire (1956), 40 Cr.App.Rep. 92; Menz and Royce 119671 S.A.S.R. 329; Combo [I9711 1 N.S.W.L.R. 703; Eckhardt (1971), 1 S.A.S.R. 347; Parole: Breckenridge, ibid. note 179; Eaton (1968), 53 Cr.App.Rep. 118; Langan [I9681 Crim.L.R. 687; Bruce [I9711 V.R. 656. There is no objection to the trial judge men-

' tioning the possibility of parole provided the possibility is not operating as a justifi- cation for an excessive sentence: Cash [I9691 Crirn.L.R. 386; Black [I9711 Crim.L.R. 109. Fiori Rinaldi, in his extensive monograph Parole in Australia, A.N.U., 1974, 69-70, argues that the possibility of parole release should, in some Australian States, be a relevant sentencing consideration.

181 Eaton, ibid. Ryding, ibid. note 179. 182 (1967), 51 Cr.App.Rep. 72. 183 Combo, ibid. note 180; Humphries [I9711 1 N.S.W.L.R. 781; Ryding, ibid. note

179; Eckhardt, ibid. note 180. 184 Bruce, ibid. note 180.

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3. Availability of services

It is common practice for magistrates and judges to enquire whether services or institutional facilities, particularly of a therapeutic nature, will actually be available to the offender if, under the conditions of the sentence, he is required to make use of them. However, it is now noticeable that as the range of sanctions is extended, the legislature is beginning to make it mandatory for the courts to satisfy themselves that a particular order can and will be executed. Thus, in Tasmania, under the Mental Health Act 1963, a Hospital Order may not be made unless the court is satisfied that arrangements exist for the admission of the mentally dis- ordered offender to the hospital specified in the order within twenty-eight days.l85 Similarly in both Tasmania and Victoria the legislation dealing with work orders requiring an offender to perform unpaid work under

(known as community service orders in England) insists that the court be first satisfied that the order can be implemented. Under the English Powers of Criminal Courts Act 1973 a probation order cannot include a condition requiring the offender to submit to psychiatric treatment of any sort unless the court is content that treatment arrangements have been made and the same principle applies if the probation con-

I dition calls for attendance at a day training centre, or when a community service order is rnade.l8?

CONCLUSION

The evolution of the accused's right to give evidence on his own behalf at the adjudicatory stage of the criminal trial has been accompanied by a slower but continuing clarification of his right to challenge or adduce evidence at the dispositional stage. With the greater use of imprisonment for felony instead of capital punishment, the ritualistic and purely administrative function of the sentencing judge was soon replaced by wide discretions the exercise of which was largely unfettered by legislative con- trols. As the process of change was continued, the background of sweep- ing discretionary power which characterises the sentencing decision is being modified by specialist sentencing legislation and by case law evidenc- ing an awareness of the need to clarify the procedural aspects of sentencing, particularly those governing the means by which facts relating to the offender and his offence are ascertained.

At one extreme there is the view that, within the conlines of the verdict or the plea of guilty, the sentencer should be free to form his own opinion

l85s. 51(1Xb) & (3). See also Eng: Mental Health Act 1959, s. 60(3) & (4). 186Tas.: Probation of Offenders Act 1934, s. lA(3); Vic.: Social Welfare Act 1958,

s. 145A(l l(b) - the actual sentence is that of imprisonment to be Sewed by way of periodic detention but splecific power to require unpaid work is granted by s. 145D.

187 SS. 3(3), 4(2) (b) & 14(2)(b).

Fact-&ding for Serttencers 205

and to seek and use information from any source without having it tested under oath and, in some cases, without even having to reveal it to the defendant. On the other hand, there is the attitude that not only is the accused entitled to a hearing and the benefit of any reasonable doubt in respect of disputed matters of aggravation or mitigation, but also that the judge's sentencing discretion should be exercised only on information derived from the sworn testimony of witnesses examined in open court.

To force all presentence facts through the needle's eye of the evidentiary standards applicable to trial would mean that most of the background information about the offender now utilised by sentencers to guide them would no longer be available; yet to reject 'the ordinary principles of a judicial inquiry'lss is to risk error, arbitrariness and injustice. The wm- promise the Australian courts have worked out, and which is broadly expressed in s. 386(7)-(10) of the Tasmanian Criminal Code allows free admissibility so that sentencing information can be received by the court without the evidentiary restrictions which operate at the adjudicatory stage, coupled with notice to the defendant so that he might have an opportunity to challenge and rebut the information so received. The South Australian cases add that the defendant is also entitled to the benefit of any reasonable doubt in respect of disputed sentencing facts.

Thomas has suggested reconstruction of the substantive law as a means of avoiding jury verdicts whose factual implications are ambiguous,189 but no matter how much legislative revision and gradation of offences takes place, the determination of guilt alone will inevitably leave open many facts vital to sentencing and therefore some procedural means will always have to be adopted to handle disputes concerning these matters. In S. v. Recorder of Manchesterlgo Lord MacDermott, in recognising the distinction between the adjudicatory and dispositional stages of the criminal trial, warned against treating each component as standing isolated from and independent of the other, and added:lgl

. . . the tenor of English law has been against erecting any barrier between these two parts or stages which would place them, as it were, in watertight compart- ments and so reduce the scope of judicial ascestainment and discretion.

If the process of trial and sentencing is perceived as a unity, though taking place in two stages, it is not inappropriate that the courts should acknowledge that the sentencing inquiry is as adversarial as the trial proper and that they should insist on the application of minimum procedural safeguards in respect of all disputed matters paralleling the pro- tections offered at the adjudicatory stage and in line with the principles

18s Oficial Solicitor v . K . [I9651 A.C. 201, 238. 189 'Establishing a Factual Basis for Sentencing' [I9701 Crim.L.R. 80, 89-90. lgO [I9711 A.C. 481. See also Ex parte Kelly, re Teece [I9661 2 N.S.W.R. 674, 678. 191 [I9711 A.C. 481, 493.

206 Melbourne University Law Review TVol. 10. Seot. '751

enunciated in Woolmington's case. The need to assist the court to choose between a greater variety of sanctions than ever before, and the greater availabilitv of legal aid services to defendants will compel prosecutors to " - - - - - - L -- =----...--- -

play an increasingly active role in presenting evidence and argument upon sentencing matters. And if the cases in which this occurs are more adequately reported than at present, the groundwork may be set for a signifi- cant Australian contribution to the develooing comus of sentencine law.

fact-finding for sentencers

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