Published by Geoff Harrison | 13 February 2024
The principle of De Simoni is an important principle related to sentencing. Essentially, when an offender is being sentenced, the court can sentence on the basis of all factors and circumstances related to that offence; however, the court cannot take into account an aggravating factor that would, in essence, mean that the offender would be sentenced for a more serious offence that they are not charged with.
In R v De Simoni {1981] HCA 31, Gibbs CJ, stated at [8]:
However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
In relation to common assault matters and the prosecutor adducing evidence of actual bodily harm, it was noted by Rotham J, in R v Abboud [2005] NSWCCA 251at [19]:
It is impermissible for the Crown to tender, or for a court to admit, evidence in sentencing proceedings for common assault which evidence seeks to demonstrate actual bodily harm. While it may be that this occurs because of agreement relating to a plea on a lesser charge, it is still impermissible and if it is not possible to adduce material relevant to the sentencing without also adducing irrelevant material the matter should be adjourned in order to be dealt with properly. The adducing of such material has become a common occurrence which is to be deprecated.
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