The Rule in De Simoni: A Court Cannot Sentence on Facts that Indicate a More Serious Offence

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By Paul Gregoire and Ugur Nedim

On 25 May 1979, Luciano De Simoni broke into a house with intent to steal in the Perth suburb of Mundaring. The regular burglar had believed the house was empty and was surprised when he was disturbed by an occupant – a young man, he thought – whom he struck on the back of the head.

After he’d dealt with the occupant, De Simoni realised his victim was an elderly woman. He’d actually hit 78-year-old Florence Kathleen Scott in the rear of her skull, causing a 10 centimetre wound, which required eight stitches.

On finding he’d hit the elderly woman by mistake, De Simoni felt remorseful. So, he helped Ms Scott onto a chair, gave her a glass of water and passed her the phone, so she could call for assistance.

De Simoni then took off with $180 he’d managed to locate.

After his arrest, De Simoni went on to plead guilty to one count of robbery. Western Australian District Court Judge Brian O’Dea subsequently sentenced him to seven years imprisonment, with a non-parole period of four years.

“You did subsequently show some compassion. You assisted her by washing her wound,” the sentencing judge remarked. “But I feel this was more because of the realisation at that stage of what you had done… In my view this crime deserves punishment and substantial punishment”

The crime of robbery

In 1981, the crime of robbery fell under section 391 of the Criminal Code (WA). That section set out that a person was guilty of the offence if they stole something and used or threatened to use “actual violence” towards another so as to obtain the stolen thing, or to prevent resistance to it being stolen.

At the time, the maximum penalty for the offence of robbery in WA was 14 years imprisonment with hard labour. Section 391 went on to set out circumstances of aggravation, which would made an offender liable to more severe punishment.

In this case, aggravated circumstances entailed being armed with a weapon during the robbery, being in company, wounding or using any other “personal violence” against another. A wound implies that both layers of the skin, the dermis and epidermis, are cut or broken.

The crime of aggravated robbery carried “imprisonment for life with hard labour, with or without whipping”.

During the sentencing hearing, Judge O’Dea noted that robbery carried a 14 year maximum sentence, but an offender who wounded another was subject to a maximum penalty of life imprisonment. His Honour added that the Crown “had not seen fit to add the aggravating feature”, so De Simoni ended up facing up to 14 years gaol time.

Appealing the sentence

Following the District Court proceedings, De Simoni appealed his sentence to the Western Australian Court of Criminal Appeal (CCA) on the ground that it was “inappropriately high and outside the range of a sound discretionary judgment”.

The CCA ruled that the sentence was indeed excessive, but its decision was not based on the ground raised in the notice of application, but rather on ground that the appeals court itself raised.

The CCA found that the fact De Simoni had wounded his victim and used personal violence were circumstances of aggravation that the sentencing judge should not have considered when imposing the sentence, as these circumstances were not charged in the indictment.

The now revoked section 582 of the Criminal Code stipulated at the time that “if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment”. This implies that a judge cannot impose a harsher sentence based on circumstances that fall outside of a charged offence.

The court found that De Simoni should have been sentenced without considering the wounding or use of personal violence.

For that reason, the appeals court reduced De Simoni’s sentence to 3 years prison time, with a non-parole period of 18 months.

High Court deliberations

The Crown appealed this decision to the High Court of Australia, where a majority of the five justice panel ruled allowed the appeal on 16 June 1981.

In his judgment, Chief Justice Gibbs set out that “at common law, the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence” can be traced back as far as the eighteenth century.

His Honour found that section 582 of the Criminal Code did rule out aggravated circumstances being factored into sentencing. However, he also found that the “actual violence” involved in the offence of robbery, was no different to the “personal violence” involved in the aggravated offence.

The Chief Justice explained that the appeals court was incorrect in finding that the original judge should not have considered any violence in sentencing, as there is an element of violence contained in the offence that De Simoni had pleaded guilty to.

His Honour also found the Court of Criminal Appeal was correct in finding Judge O’Dea should not have considered De Simoni having wounded his victim, as this was not part of the crime he was being sentenced for.

The orders given

However, Chief Justice Gibbs did not believe the CCA had increased De Simoni’s sentence in relation to the wounding, as Judge O’Dea had merely mentioned it during sentencing, and had only taken into account the violence implied in the crime of robbery.

His Honour further found that the appeals court was wrong in having concluded that the sentencing judge factored in circumstances of aggravation into De Simoni’s sentence.

The appeal was therefore upheld, and the case was remitted to the CCA to consider it on the grounds of the application that it hadn’t addressed initially.

The majority of the court agreed with the findings of the Chief Justice, although two dissenting judges found that Judge O’Dea should have considered the wounding in sentencing.

The rule in De Simoni

The De Simoni principle continues to be applied in sentencing in NSW. Currently, when police charge a person, they serve them with a court attendance notice and a statement of facts, which outlines the circumstances involved in the offence.

In practical terms, the rule in De Simoni means that a sentencing court cannot take into account facts that would warrant a conviction for a more serious crime than that which has been charged.

So, for example, if a defendant pleads guilty to a common assault but the fact sheet indicated a more serious offence, such as assault occasioning actual bodily harm, the facts should be amended to remove the mention of any injuries that are more than ‘transient or trifling’ – in other words, which amount to actual bodily harm – before the case proceeds to sentencing.

Another example is where a defendant pleads guilty to drug possession but the fact sheet indicates that he or she supplied the drugs concerned.

During his judgment, Chief Justice Gibbs specifically referred to the 1976 UK case of R versus Foo, in which the offender pleaded guilty to possession of heroin, in circumstances where a letter found in his possession stated he was involved in supplying the drug, and the judge sentenced him accordingly.

On appeal, the appeals court in that case found that the sentencing judge had made an error by sentencing Foo for drug supply rather than drug possession, and his original 4 year sentence was therefore reduced.

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