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1. Introduction

The De Simoni principle is a foundational doctrine in Australian criminal law, serving as a critical safeguard in the sentencing process. Established by the High Court in The Queen v De Simoni (1981) 147 CLR 383, the principle ensures that an offender is sentenced only for the offence of which they have been convicted, and not for more serious, uncharged conduct. This doctrine is not merely a technical rule; it is a substantive protection that upholds the integrity of the criminal justice system, the rights of the accused, and the fairness of sentencing proceedings.

A recurring challenge in the application of the De Simoni principle arises when prosecutors attempt to include uncharged conduct in the facts presented to the sentencing court, either through agreed statements of facts, victim impact statements, or other evidentiary means. This article provides a comprehensive analysis of the De Simoni principle, tracing its historical development, examining key cases and judicial reasoning, exploring prosecutorial attempts to circumvent the rule, and detailing the legal safeguards and judicial oversight mechanisms that prevent such circumvention. The report also surveys recent developments and current legal practices, offering a thorough account of how Australian courts continue to enforce and refine this vital principle.

2. Historical Development and Origins of the De Simoni Principle

2.1 Factual Background of The Queen v De Simoni (1981)

The origins of the De Simoni principle lie in the events of 1979 in Western Australia. Luciano De Simoni was charged with robbery under section 391 of the Criminal Code (WA). The facts accepted by the sentencing court were that De Simoni had robbed an elderly woman, striking her on the back of the head with a piece of wood and causing a significant wound. He pleaded guilty to the basic offence of robbery, not to the more serious offence of aggravated robbery involving wounding, which would have attracted a higher penalty under the Code. ^1,2

At sentencing, the prosecution presented facts that included the wounding of the victim, and the sentencing judge treated this as an aggravating feature, imposing a harsher sentence than would have been warranted for the basic robbery charge. The judge sentenced De Simoni to seven years’ imprisonment, explicitly referencing the violence and injury as justifying a substantial sentence. ^3,4 De Simoni appealed, arguing that the sentencing judge had erred by taking into account circumstances of aggravation—specifically, the wounding—that were not charged in the indictment. The Court of Criminal Appeal agreed, and the Crown appealed to the High Court.

2.2 The High Court’s Legal Reasoning and Decision

The High Court, in a unanimous decision, upheld the Court of Criminal Appeal’s ruling. The Court’s reasoning was rooted in both statutory interpretation and fundamental principles of criminal justice. Section 582 of the Criminal Code (WA) provided that “if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.” The High Court held that the sentencing judge had erred by taking into account the wounding as an aggravating factor, as this was not charged in the indictment and would have constituted a more serious offence—aggravated robbery—than the one to which De Simoni had pleaded guilty. ^5,6

Chief Justice Gibbs articulated the principle succinctly: “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.^7,8 The Court emphasized the fundamental rule that "no one should be punished for an offence of which he has not been convicted".⁸ The High Court found that the sentencing judge had, in effect, sentenced De Simoni as if he had been convicted of aggravated robbery involving wounding, rather than the basic offence of robbery, which was impermissible.^9,10

2.3 Broader Legal Context and Common Law Foundations

The De Simoni principle did not emerge in isolation. Its roots can be traced to longstanding common law doctrines and earlier statutory provisions. At common law, it was well established that circumstances of aggravation not alleged in the indictment could not be relied upon for sentencing. This principle, dating back to the eighteenth century, reflects the fundamental requirement of fairness in criminal proceedings.¹¹ The High Court referenced earlier cases, including the UK case of R v Foo (1976), where the English Court of Appeal held that a sentencing judge erred by sentencing an offender for drug supply rather than drug possession, the offence to which the accused had pleaded guilty.¹² Australian courts had also considered similar issues under the Queensland Criminal Code, reinforcing the requirement that the prosecution must clearly allege and prove any circumstance of aggravation that would increase the seriousness of the offence and the potential penalty.^13,14

2.4 Statutory Developments and Enduring Influence

Although section 582 of the Western Australian Criminal Code has since been repealed, the principle articulated in De Simoni has been adopted and applied in common law jurisdictions across Australia, and its rationale continues to inform sentencing practice.^15,16 The De Simoni principle is now entrenched as a matter of both statutory and common law, serving as a bulwark against prosecutorial overreach and judicial error.

3. The De Simoni Principle in Practice: Prohibiting the Inclusion of Uncharged Conduct

3.1 Core Doctrine and Its Application

The De Simoni principle has a clear and practical implication: the prosecution cannot circumvent its operation by including uncharged conduct in the facts presented to the sentencing court. If an offender pleads guilty to a lesser charge, the facts sheet or agreed statement of facts must not contain allegations that would amount to a more serious, uncharged offence. For example, if a person pleads guilty to common assault, the facts should not describe injuries or conduct that would support a charge of assault occasioning actual bodily harm.^17,18,19 Similarly, if a person pleads guilty to drug possession, the facts should not suggest supply or trafficking.^20,21

This requirement is not merely procedural; it is a substantive protection against overreach by the prosecution and ensures the integrity of the plea negotiation process. The courts have repeatedly emphasized that the prosecution must lead facts that prove only the lesser charge, and the sentencing judge must disregard any aggravating circumstances that would support a more serious, uncharged offence.^22,23

3.2 Key High Court and Appellate Decisions

3.2.1 The Queen v De Simoni (1981) 147 CLR 383
This foundational case established the principle and set the parameters for its application. The High Court held that a sentencing judge cannot take into account circumstances of aggravation not charged in the indictment, even if those circumstances are supported by the evidence or included in the agreed facts. ^24,25,26 The decision underscored the importance of the charge as the basis for sentencing and rejected the notion that the prosecution could “waive” the need to charge aggravating circumstances by including them in the facts. ²⁷

3.2.2 Nguyen v The Queen (2016) 256 CLR 656
In Nguyen v The Queen, the High Court revisited the De Simoni principle in the context of sentencing for manslaughter. The sentencing judge had taken into account the absence of a factor (premeditation) that, if present, would have rendered the offence murder rather than manslaughter. The High Court held that it was an error to assess the objective seriousness of the offence by reference to the absence of a circumstance that would have made the offence a different, more serious one. ^28,29,30 The Court reaffirmed that the De Simoni principle prohibits not only the inclusion of uncharged aggravating facts but also the consideration of the absence of facts that would have supported a more serious charge.

3.2.3 Betts v The Queen (2016) 259 CLR 473
In Betts v The Queen, the High Court again considered the application of the De Simoni principle. The case involved the sentencing of an offender for manslaughter, where the prosecution sought to include facts that would have supported a charge of murder. The High Court reiterated that a sentencing judge cannot take into account facts that would warrant conviction for a more serious offence than that charged. ³¹

3.2.4 Elias v The Queen; Issa v The Queen [2013] HCA 31
Although primarily concerned with the principle of parity and the appropriate maximum penalty, Elias v The Queen; Issa v The Queen also touched on the De Simoni principle. The High Court confirmed that sentencing must be based on the offence charged and proven, and not on uncharged or more serious conduct. ^32,33

3.2.5 R v FV [2006] NSWCCA 237
This New South Wales Court of Criminal Appeal decision is a leading authority on the practical application of the De Simoni principle in plea negotiations and sentencing. The court warned against the practice of tendering the entire Crown brief in addition to the agreed statement of facts, as this risks the sentencing judge taking into account facts that would aggravate the offence contrary to De Simoni. ³⁴

3.2.6 Harris v Harrison [2014] NSWCCA 84
In Harris v Harrison, the Court of Criminal Appeal confirmed that “care must be taken to ensure the offender is not punished for an offence which is not charged”. ³⁵ The case is notable for its discussion of the wider application of the De Simoni principle, including its relevance to facts that would support charges of equal or lesser seriousness than the charge pleaded to. ^36,37

3.2.7 R v Crowley [2004] NSWCCA 256 and Zammit v R [2010] NSWCCA 29
These cases address the procedural safeguards required when there is a discrepancy between the agreed facts and other materials tendered for sentencing. The courts held that if there is a difference between the agreed facts and other evidence, the judge must raise the issue with the parties and not proceed to sentence until the matter is resolved. ^38,39

3.3 Boundaries and Exceptions to the Principle

The boundaries of the De Simoni principle have been clarified in several respects:

• Element of the Offence: The principle does not prevent the court from considering facts that are elements of the offence charged. For example, violence is an element of robbery, so the court may consider the violence involved in the commission of the robbery, but not additional aggravating conduct that would support a more serious charge. ^40,41

• Absence of Aggravating Circumstances: As clarified in Nguyen v The Queen, the court cannot take into account the absence of a circumstance that would have rendered the offence a more serious one. ^28,29

• Equal or Lesser Offences: The principle is most strictly applied to facts that would support a more serious offence, but courts have also cautioned against punishing an offender for an offence of equal or lesser seriousness than that charged. ^36,37

• Negotiated Pleas and Agreed Facts: The principle requires that, where a plea to a lesser charge is accepted, the agreed facts must be consistent with the lesser charge and must not include allegations that would support a more serious offence. ^42,43

• Procedural Safeguards: Where there is a discrepancy between the agreed facts and other evidence, the judge must clarify the basis for sentencing and ensure that the offender is not sentenced on the basis of uncharged conduct. ^38,39

4. Prosecutorial Attempts to Circumvent the De Simoni Principle

4.1 Inclusion of Uncharged Conduct in Agreed Statements of Facts

One of the most direct methods by which prosecutors have sought to circumvent De Simoni is by including references to uncharged, aggravating conduct in the agreed statement of facts tendered to the court at sentencing. This tactic is particularly prevalent in cases resolved by plea agreements, where the prosecution and defence negotiate the facts to be presented to the court. The original De Simoni case itself is a classic example, where the prosecution’s fact sheet included the wounding of the victim, even though the charge was simple robbery. ^44,45,46,47

This issue has recurred in other contexts. For instance, in cases where a defendant pleads guilty to common assault, but the fact sheet describes injuries that would support a charge of assault occasioning actual bodily harm, the prosecution’s inclusion of such facts risks a De Simoni breach. Courts have held that, in these circumstances, the facts should be amended to remove references to injuries that exceed the elements of the charged offence. ^{17,48,49,50,19} Similarly, in drug cases, if a defendant pleads guilty to possession but the facts suggest supply, the prosecution must ensure that the facts do not support a more serious, uncharged offence. ^20,51,21

4.2 Use of Victim Impact Statements to Introduce Uncharged Conduct

Another avenue for attempted circumvention is the use of victim impact statements (VIS) to introduce facts relating to uncharged conduct. Prosecutors may tender VIS that describe harm or circumstances going beyond the offence of conviction, potentially inviting the court to consider aggravating factors that would support a more serious charge. The Sentencing Bench Book and case law make clear that a VIS should refer only to the impact of the offence before the court. Details of conduct in a VIS that would denote a more serious offence cannot be taken into account, even if no objection is raised, as this would breach the De Simoni principle. ^52,53 In R v H [2005] NSWCCA 282, the Crown’s tender of a brief to support the VIS was found to be “misconceived” and risked breaching De Simoni. ⁵⁴

4.3 Introduction of Uncharged Conduct as Character Evidence

Prosecutors have also attempted to introduce uncharged conduct under the guise of character evidence, particularly to impugn the defendant’s credibility or moral standing. While character evidence is generally inadmissible to prove propensity, exceptions exist for impeachment purposes or where the defendant “opens the door” by putting character in issue. ^55,56 However, the use of uncharged conduct as character evidence is tightly circumscribed, and courts are vigilant in preventing the prosecution from using this route to circumvent De Simoni. ^57,58,59 In R v Radic [2001] NSWCCA 174, the court held that the judge erred by resolving a factual dispute at sentence based on uncharged conduct. ⁶⁰

4.4 Attempting to Rely on “Context” or “Background” Evidence

Prosecutors sometimes argue that evidence of uncharged conduct is admissible as “context” or “background” to the charged offence, rather than as an aggravating factor. This is particularly common in cases involving ongoing criminal conduct, such as family violence or drug offences. While courts recognize that some background evidence may be relevant to understanding the circumstances of the offence, they have drawn a clear line: such evidence cannot be used to aggravate the sentence beyond what is appropriate for the offence of conviction. ^61,62,63 In El-Ghourani v R [2009] NSWCCA 140, the court held that while the broader circumstances of a drug importation could be considered for context, the sentencing judge must focus on the crime charged and not treat complicity in the uncharged importation as an aggravating factor. ⁶¹

4.5 Judicial Responses and Remedial Measures

Courts have consistently rebuffed prosecutorial attempts to circumvent De Simoni by including uncharged conduct in sentencing materials. The judicial response has been to exclude or disregard any facts or evidence that would amount to a more serious, uncharged offence, require that agreed statements of facts be amended to remove references to uncharged aggravating conduct before sentencing proceeds, and overturn sentences on appeal where the De Simoni principle has been breached. ^{42,43,49,64,65} The courts have also clarified that the De Simoni principle applies not only to facts that would support a more serious charge, but also to aggravating factors that would warrant a higher penalty for the same offence. ^66,28

5. Legal Safeguards, Procedural Protections, and Judicial Oversight

5.1 Prosecutorial Duties and the Presentation of Facts

A key procedural safeguard against De Simoni violations is the duty of the prosecution to present only those facts that are relevant to the offence charged. Prosecutors are required to ensure that the statement of facts or fact sheet tendered to the court does not include references to uncharged conduct or aggravating circumstances that would elevate the seriousness of the offence beyond the charge to which the accused has pleaded guilty. ^42,23,67 Prosecutorial guidelines reinforce this obligation, and any breach can result in appellate intervention and the setting aside of the sentence. ^68,69

5.2 Defense Remedies: Objections and Pre-Sentencing Safeguards

The defense plays a crucial role in safeguarding against De Simoni violations. Defense counsel must meticulously review the statement of facts and object to the inclusion of any material that would amount to an uncharged or more serious offence. ^70,71,72 Objections can be raised at several stages: pre-sentencing negotiations, at the sentencing hearing, and during submissions. The rules of evidence, particularly the requirement that only relevant evidence be admitted, provide a further layer of protection. ^73,74

5.3 Judicial Duties: Exclusion of Improper Evidence and Fact-Finding

Judicial officers have a positive duty to ensure that the De Simoni principle is not breached during sentencing. Judges must critically assess the facts presented and ensure that they do not include uncharged aggravating circumstances. ^75,76 Sentencing judges are responsible for making findings of fact, but may not take into account, to the detriment of the offender, any fact that has not been established beyond reasonable doubt or that would support a more serious charge. ^77,78 Sentencing judges are required to give clear reasons for their decisions, identifying the factors taken into account and the weight given to them ^79,80, and must ensure procedural fairness by giving the parties an opportunity to address any adverse matters. ^81,82,83

5.4 Appellate Oversight and Remedies for De Simoni Violations

Appellate courts play a vital role in enforcing the De Simoni principle. Where a sentencing judge has erred by taking into account uncharged conduct or aggravating circumstances that would support a more serious offence, the error is one of law and provides grounds for appeal. ^84,85,86 Successful challenges on De Simoni grounds typically result in the appellate court setting aside the original sentence and either substituting a new sentence or remitting the matter for re-sentencing. ^87,88,89 Notable appellate decisions have clarified the application of the De Simoni principle in various contexts, including R v De Simoni (1981) 147 CLR 383, R v Abboud [2005] NSWCCA 251, and Issa v R [2017] NSWCCA 183. ^{87,90,91,92,93}

5.5 Rules of Evidence and Court Procedures

The rules of evidence are a critical safeguard against the admission of improper material during sentencing. Only relevant evidence may be admitted, and evidence that is unfairly prejudicial or that relates to uncharged conduct is generally inadmissible. ^73,74 Court procedures, including practice notes and directions, reinforce these protections. The Sentencing Bench Book and other judicial resources provide practical guidance to judges and practitioners on the application of the rules of evidence in the sentencing context, with particular emphasis on the need to avoid reliance on uncharged conduct. ^84,95

5.6 Effectiveness of Safeguards and Ongoing Challenges

The legal and procedural safeguards against circumvention of the De Simoni principle are robust and multi-layered. However, challenges remain. The inclusion of extraneous or aggravating material in statements of facts is not uncommon, and the effectiveness of the safeguards depends on the vigilance of all parties—prosecutors, defense counsel, and judges. ^96,97,98 The risk of inadvertent breaches is heightened in cases where the facts are complex or where plea negotiations result in agreed facts that may stray into territory covered by more serious offences. ^75,99 Ongoing judicial education, clear prosecutorial guidelines, and robust appellate oversight are essential to maintaining the integrity of the sentencing process and upholding the fundamental rights of accused persons. ^100,101

6. Recent Developments and Current Legal Practices (2020–2025)

6.1 Judicial Application and Appellate Oversight

Recent years have seen the De Simoni principle repeatedly affirmed and applied by both the High Court and intermediate appellate courts. The principle’s vitality is evident in the continued emphasis on the need for sentencing courts to confine themselves to the offence of conviction and to disregard aggravating facts that would constitute a separate, more serious offence. ^16,102,103 The New South Wales Court of Criminal Appeal and other appellate courts have consistently overturned sentences where the sentencing judge has erred by taking into account uncharged conduct that would have warranted a more serious charge. ¹⁰⁴

6.2 Legislative and Procedural Developments

No major legislative amendments have been enacted in the last five years that alter the core application of the De Simoni principle. However, there have been important procedural clarifications and practice note updates, particularly in New South Wales and Victoria, aimed at reinforcing the need for accuracy and fairness in the presentation of facts at sentence. ¹⁰⁵ Practice notes and bench books now routinely instruct practitioners to ensure that agreed facts do not include uncharged conduct that would support a more serious offence. ^75,76,106 The Judicial Commission of NSW, for example, has updated its guidance to emphasize the risks of De Simoni error when additional documents or statements are tendered at sentence. ¹⁰⁷

6.3 Jurisdictional Differences and Consistency

While the De Simoni principle is applied across all Australian jurisdictions, there are some differences in statutory frameworks and procedural emphasis. New South Wales, with its detailed statutory list of aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act 1999, has generated more appellate litigation and commentary on the interaction between statutory factors and the common law De Simoni principle. ^{108,109,110,111,112} Other jurisdictions, such as Victoria and Queensland, rely more heavily on common law principles, but the underlying doctrine remains the same. ^15,113

6.4 Recent Trends and Notable Cases

The period 2020–2025 has seen a number of appellate decisions in which sentences have been set aside or reduced due to De Simoni errors. In addition to HA v R [2023] NSWCCA 274 and DPP (NSW) v TH [2023] NSWCCA 81, other cases have highlighted the risks of “double counting” aggravating factors or relying on facts that go beyond the charge. ^114,115,23 The courts have also clarified that, while the prosecution may present evidence of the circumstances of the offence, they must not seek to prove or rely on facts that would support a more serious, uncharged offence. ^91,116,98

6.5 Legal Commentary and Academic Analysis

Contemporary legal commentary and academic analysis continue to underscore the importance of the De Simoni principle as a safeguard against prosecutorial overreach and as a guarantee of procedural fairness in sentencing. ^117,118 Leading legal publishers and commentators have highlighted the ongoing relevance of the principle and the need for both prosecutors and defence lawyers to be acutely aware of its requirements. ¹¹⁹ The Sentencing Bench Book now includes detailed commentary on the principle and its application in a range of contexts, including child sexual offences, drug offences, and offences involving violence. ¹²⁰

7. Conclusion

The De Simoni principle is a bedrock of Australian sentencing law, prohibiting the prosecution from circumventing the limits of the charge by including uncharged conduct in the facts presented for sentencing. The High Court and Courts of Appeal have consistently upheld and refined the principle, ensuring that offenders are sentenced only for the offences of which they have been convicted. Key cases such as The Queen v De Simoni, Nguyen v The Queen, and Betts v The Queen have clarified the boundaries and exceptions to the principle, while decisions like R v FV and Harris v Harrison have provided practical guidance on its application.

Prosecutorial attempts to circumvent the De Simoni principle—whether by including uncharged facts in agreed statements, victim impact statements, or character evidence—have been consistently rebuffed by the courts. The jurisprudence is clear: a defendant can only be sentenced for the offence of which they have been convicted, and any attempt to introduce uncharged aggravating conduct is impermissible. This principle upholds the integrity of the criminal justice system, ensures fairness to the accused, and maintains public confidence in the administration of justice.

The legal system provides a comprehensive array of safeguards to prevent circumvention of this principle, including prosecutorial duties, defense objections, judicial oversight, appellate review, and the rules of evidence. While these mechanisms are generally effective, their success depends on the vigilance and professionalism of all participants in the criminal justice process. Ongoing judicial education, clear prosecutorial guidelines, and robust appellate oversight are essential to maintaining the integrity of the sentencing process and upholding the fundamental rights of accused persons.

As Australian criminal law continues to evolve, the De Simoni principle will remain a critical safeguard against prosecutorial overreach and judicial error in the sentencing process. Its enduring importance lies in its protection of individual rights, its promotion of fairness and consistency in sentencing, and its reinforcement of the proper roles of the prosecution and the court. The principles core message—that no one should be punished for an offence of which they have not been convicted—remains as relevant and compelling as ever.

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