Fact-finding in federal sentencing

This Chapter addresses three topics relating to the methodology of sentencing a federal offender:

The statutory regime

61. Commonwealth statutes are not generally prescriptive about the procedures for fact-finding by a court sentencing a federal offender. Procedures and evidentiary rules in the relevant State or Territory, whether pursuant to common law or local statutes, are generally applied by the provisions of the Judiciary Act 1903 (Cth) to the sentencing of federal offenders.

62. Section 16A(2) of the Crimes Act 1914 (Cth) requires a court sentencing a federal offender to take into account such of a number of listed matters “as are relevant and known to the court”. This requirement is not prescriptive of the ways in which such matters may become “known to the court”, but in some circumstances precludes a sentencing court from acting upon a mere presumption: see “3.1.3 Relevant matters “known to the court”: Crimes Act 1914, s 16A(2)”.

Fact-finding following a jury trial

63. The constitutional guarantee that the trial on indictment of any offence against any law of the Commonwealth shall be by jury (Constitution, s 80) does not require more than that, on a trial, the jury must determine whether the elements of the offence are made out. Matters of aggravation may be made elements of the offence (for example, as in the offence of aggravated robbery in s 132.3 of the Criminal Code (Cth)), or may instead go only to penalty (for example, as in s 141.1(6) of the Criminal Code (Cth)). Facts which are not elements of the offence - including matters which may substantially affect the applicable penalty - may be determined by a sentencing judge alone.

64. Kingswell(1) provides an illustration. The provisions of the Customs Act 1901 (Cth) there under consideration provided higher penalties for the offence of conspiring to import prohibited imports which are narcotic goods, if “the Court” was satisfied that the narcotic goods consisted of a trafficable quantity or a commercial quantity. The majority of the High Court in Kingswell held that the statute did not create separate offences depending on the quantity; it construed the reference to “the Court” as a reference to the sentencing judge alone, and held that reposing in the judge alone the determination of the relevant quantity did not contravene s 80 of the Constitution.

65. If a person is found guilty of a federal offence by a jury, the verdict determines only that the elements of the offence (and any circumstances of aggravation pleaded in the indictment which have been presented as a condition of a guilty verdict) have been proven beyond reasonable doubt. It is for the sentencing judge to find the relevant facts of the offending, beyond reasonable doubt, for the purposes of sentencing. A sentencing judge is entitled to consider all the conduct of the accused, including that which would aggravate the offence of which the person has been found guilty. However the judge cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence than that charged.(2) The judge’s factual findings must not be inconsistent with the verdict of the jury, or with any findings of fact which are necessarily implicit in the verdict (including verdicts on other charges in the same trial), but a sentencing judge is not required to sentence on the basis of a view of the facts most favourable to the offender.(3) So, for example, in a conspiracy case the sentencing judge is entitled not only to make findings about the formation of the agreement, but also about what was done in furtherance of the agreement, even if that includes the commission of the substantive offence which was the object of the conspiracy.(4)

Relevant matters “known to the court”: Crimes Act 1914, s 16A(2)

66. All the matters listed in s 16A(2) must be taken into account where “relevant and known” to the court. The sub-section does not require the sentencing court to refer to each of the matters specified; it requires only that the “relevant and known” matters be taken into account.(5)

67. In Weininger(6) the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) observed that the phrase “known to the court” rather than “proved in evidence” or some equivalent expression suggests strongly that s 16A was not intended to require formal proof of matters before they could be taken into account in sentencing. Put another way, the majority said that the phrase “known to the court” should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally “proved” or “admitted”.

68. However one significant limiting effect of the requirement in s 16A(2) that a listed matter be “known to the court” has been identified in the authorities. In Bui,(7) the High Court dealt with a contention that the presumed stress and anxiety of a respondent to a successful Crown appeal against sentence should be taken into account in re-sentencing. In rejecting the contention, the Court held that the requirement in s 16A(2) that a sentencing court must have regard to the “mental condition” of an offender if “known to the court” referred only to the actual mental condition of the offender, not a presumed condition, and that such actual condition “must be demonstrated before the provision applies”.(8) In Pratten (No 2)(9) the New South Wales Court of Criminal Appeal held that, in accordance with Bui, a court sentencing a federal offender should not act on a presumption that undue delay had caused or exacerbated stress, anxiety or depression in the offender. Not only should these “be established as actual, not presumed, conditions”,53 but the Court proceeded on the basis that a relevant causal link must also be established.54 Similarly, in Besim and MHK (No 3),55 the Victorian Court of Appeal held (applying Bui) that, “absent specific evidence”, it was “not necessarily evident” that the prospect of being subject to a continuing detention order at the completion of the respondents’ sentences would make imprisonment more burdensome for them.

69. By parity of reasoning, the same approach should be adopted whenever it is suggested that an offender’s physical or mental condition should be treated as a factor in mitigation: for example, where it is said that anxiety about the prospect of deportation will make imprisonment more burdensome for an offender (assuming that such a prospect may ever be treated as potentially mitigating: see “4.5.6 Prospect of deportation”).

Findings of fact relating to aggravating or mitigating circumstances

70. In Olbrich,56 the majority endorsed the following statement of principle by the Victorian Court of Appeal in Storey57 about fact-finding for sentencing: [T]he judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

71. In Storey, the Court emphasised that the test was not whether the tag “aggravating” or “mitigating” should be applied to any particular fact but what use the judge proposed to make of the fact in relation to the offender.58

72. Although the quoted passage from Storey refers to “facts” relevant to sentencing, the principles stated are not confined to “facts” in a narrow sense; the principles apply to assessment of such matters as the risk of re-offending and the prospects of rehabilitation.59

73. Care is required in the application of the principles in Storey and Olbrich, for a number of reasons.

74. First, it is crucial to characterise accurately the use which is to be made of a disputed fact in order to assign the onus of proof correctly. Besim60 illustrates the danger of failing to do so. The offender pleaded guilty to an offence of doing acts in preparation for, or planning, a terrorist act. A crucial question of fact in sentencing was whether the offender had since renounced the commitment to the violent jihadist ideology which was inherent in the offending (as this went to questions of remorse, the prospects of rehabilitation, the need for specific deterrence and the need for community protection). The offender did not give evidence on the plea. In purported application of the principles in Storey, the judge found that he was neither persuaded by the offender on the balance of probabilities that the offender had renounced the ideology, nor persuaded by the prosecution beyond reasonable doubt that he had not. On appeal by the CDPP, the Director contended that the judge’s reasoning was erroneous. The Court of Appeal agreed.61 The Crown bore no onus of proving that the offender’s adherence to jihadist ideology continued; it was wrong to approach the matter as if were, in the classic sense, an aggravating factor.62 It was for the offender to make good a submission that he no longer held jihadist views; his failure to discharge that onus left the sentencing judge with nothing but the proven fact of the offender’s state of mind at the time of the commission of the offence.

75. Second, as was pointed out by the High Court in Weininger,63 not all disputed issues of fact related to sentencing must be resolved for or against the offender. Some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.

76. Olbrich64 itself provides an illustration. In that case, the sentencing judge had rejected evidence given by an offender that his role in a heroin importation was that of a mere courier, but on the evidence presented was unable to be satisfied of what the offender’s role in the enterprise was, other than being the person who imported the drugs. On appeal, it was contended that as the prosecution was unable to prove beyond reasonable doubt that the role of the offender extended beyond that of a mere courier, the judge was required to sentence the offender on a view of the facts most favourable to the offender. The majority of the High Court rejected that contention. It would have been incongruous to require the sentencing judge to sentence the offender on the basis that he was a mere courier when the judge had disbelieved his evidence to that effect.65 The majority held that the offender was to be sentenced for what he had done66; the offender had properly been sentenced on the basis that nothing further was known of his role.67

77. Third, there is no clear dichotomy between aggravating and mitigating matters. The majority in Weininger68 made this crucial point as follows:

Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.

78. The majority also pointed out that a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender.69

79. Fourth, findings about such matters as the offender’s prospects of rehabilitation or the risk of re-offending do not always need to be articulated in terms of a standard of proof; for example, “assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process.”70

Finding of other uncharged offences

80. A central principle of sentencing, clearly enunciated in De Simoni,71 is that an offender may only be sentenced for offences which the offender has pleaded guilty to or been found guilty of; that is, the offender may not be punished for other criminal conduct for which he or she is not then being sentenced.

81. However in certain circumstances a sentencing court may have regard to other offending, in ways that do not infringe the De Simoni principle.

82. One such circumstance is where other offences are formally taken into account (on the basis of an admission by the offender), pursuant to statutory authority.72 Taking into account other offences is specifically contemplated by s 16A(2)(b) of the Crimes Act 1914 (Cth): see “4.4.2 Other offences taken into account – s 16A(2)(b)”. The imposition of a more severe sentence as a result of taking another offence into account does not inherently infringe the De Simoni principle.73

83. Another circumstance in which a sentencing court may have regard to other offending is where the offending is relevant to making a finding of fact about the circumstances or context of the instant offence, or about a matter relied upon in mitigation of sentence. For example, the occurrence of other offending may be relevant to determining whether the offending was an isolated incident or was committed as part of an ongoing criminal enterprise.74 Similarly, in a conspiracy case the sentencing judge may make findings about what was done in furtherance of the agreement, even if that includes the commission of other offences, because it is necessary for a sentencing court to have regard to “considerations which advert to the content and duration and reality of the conspiracy”.75

84. The occurrence of other offending may also be relevant in ascertaining the “character” or “antecedents” of the offender (Crimes Act 1914, s 16A(2)(m)),76 or in rebuttal of a submission that that the offender has good prospects of rehabilitation ((Crimes Act 1914, s 16A(2)(n)) or that there is little need for specific deterrence of the offender (Crimes Act 1914, s 16A(2)(j)).

Hearsay assertions about an offender’s state of mind

85. Although sentencing courts are usually not bound by the rules of evidence,77 the practice of offenders relying on a hearsay account (such as statements recounted in a report of a psychologist or psychiatrist) of their state of mind on important matters (such as the existence of remorse, or the renunciation of a terrorist ideology) has frequently been deprecated.78 The same criticisms have been made of the practice in relation to the sentencing of federal offenders, and it has been held that a sentencing judge may decline to act on such evidence in the absence of sworn evidence from the offender which is subject to cross-examination.79

Notes

1 : Kingswell v R [1985] HCA 72; (1985) 159 CLR 264. In Cheng v R [2000] HCA 53; (2000) 203 CLR 248, the High Court (by majority) declined to re-consider the decision in Kingswell.

2 : R v De Simoni (1981) 147 CLR 383, 389.

3 : Isaacs v R (1997) 41 NSWLR 374; Cheung v R [2001] HCA 67; (2001) 209 CLR 1, [14]; Agius v R [2015] NSWCCA 200; (2015) 252 A Crim R 538, [1100].

4 : Savvas v R (1995) 183 CLR 1.

5 : Johnson v R [2004] HCA 15; (2004) 78 ALJR 616, [24] (Gummow, Callinan and Heydon JJ); Ferrer-Esis (1991) 55 A Crim R 231, 237 (Hunt J) (NSW CCA).

6 : Weininger v R (2003) 212 CLR 629.

7 : Bui v DPP (Cth) [2012] HCA 1; (2012) 244 CLR 638.

8 : See Bui v DPP (Cth) [2012] HCA 1; (2012) 244 CLR 638, [21]-[23],[25],[28], endorsing the view of Simpson J in DPP (Cth) v De La Rosa (2010) 79 NSWLR 11, [279]-[280].

9 : DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42.

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