Pleading Guilty to an offence? Make sure the facts you're agreeing to do not go above and beyond your charge(s)

Published 12 May 2016
Dominic Maley

Pleading guilty at the earliest opportunity is demonstrative of remorse for committing the offence, and allows for a discount to be given when being sentenced. This discount can be up to 25% depending on the timing of entry, and is subject to the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383.

When pleading guilty to an offence or offences, an agreed set of facts will be tendered to the Magistrate or Judge. It is crucial that you (and your lawyer if you have one) thoroughly read these facts to not only make sure they are accurate, but also to make sure they do not make reference to facts which would constitute a more serious charge or charges than what you have pleaded to.

If facts are allowed to be tendered to a Judge or Magistrate which are more serious than what you have pleaded to, there is a real risk your sentence can be more than what you should receive for the charges you've actually pleaded to.

The principle whereby the person sentencing is not allowed to have regard to facts which would amount to a more serious charge than that pleaded to is called the Di Simoni Principle [derived fromThe Queen v De Simoni (1981) 147 CLR 383].

In De Simoni, the accused entered a plea of guilty to robbery with threatened/actual violence after he robbed an elderly lady, hitting her on the back of the head with a piece of wood in the process.

The problem for Mr De Simoni is that the prosecuting counsel went on to refer to the fact that this blow caused a significant wound to the back of the victim's head.

Whilst Mr De Simoni had pleaded guilty to robbery with threatened/actual violence, the facts tendered by the prosecutor would amount to the more serious charge of robbery with wounding. In effect, the sentencing Judge sentenced Mr De Simoni as if he had pleaded guilty to the more serious charge.

The Court of Appeal held this was an error by the trial Judge and the sentence was reduced on that basis. The High Court agreed that there was an error, although some doubt was expressed as to whether the trial Judge ultimately gave that error enough weight so as to infect the original decision.

Whilst Gibbs CJ confirmed that aggravating features warranting a more serious charge cannot be taken into account, His Honour also posited that "no one should be punished for an offence of which [he or she] has not been convicted" – which is a wider principle and applies further to facts which would give rise to an equal or less serious charge than the charge or charges pleaded to. This wider application has been approved in McCullogh [2009] NSWCCA 94 for charges of equal seriousness. For facts which would warrant a charge of lesser seriousness than the charge pleaded to, the De Simoni principle is not always as strictly applied, although the NSWCCA did confirm that 'care must be taken to ensure the offender is not punished for an offence which is not charged' (see Harris v Harrison [2014] NSWCCA 84), and Odgers, Sentence, at [3.121] – [3.128]).

If you intend on pleading guilty to an offence, contact Maclarens Lawyers on 9682 3777 to have a professional act on your behalf.