The Factual Basis for Sentence: The Principle in De Simoni and its Extension in Chiro

In a criminal trial before a Jury in South Australia the facts are a matter for determination by a Jury and the law is a matter for determination by the Judge.

However, once a Jury has determined that an accused is guilty, it then falls to the Judge to determine the sentence.  In order to do so, the Judge takes into account all of the relevant circumstances of the offence.  In order to do so, the Judge will often have to make findings of fact which are not apparent from the verdict of the Jury.

Where issues on sentence are in contention the prosecution must establish those establish features which aggravate the offending beyond a reasonable doubt.  The Defendant must establish matters in mitigation on the balance of probabilities.

The above is subject to an important proviso: that the factual basis must be consistent with the verdict of the Jury and must not be such as to warrant a conviction for a more serious offence than that which has been found proved.

For a judge to sentence on a factual basis which would warrant a conviction for a more serious offence is to deny an accused their right to trial by jury on that more serious offence.

The High Court enunciated this principle in the case of R v De Simoni, and it is therefore often referred to by lawyers as the ‘De Simoni Principle.’

This principle was subsequently considered by the High Court in the Case of R v Chiro.

In Chiro the accused had been convicted by a Jury of one count of persistent sexual exploitation of a child.

The offence of Persistent Sexual Exploitation of a child used to require that the prosecution prove at least 2 acts of sexual abuse committed by the accused against the child over the period of at least 3 days.  The section has subsequently been amended following the ruling.

The offence, unlike most offences, can be constituted by 2 or more separate and distinct acts.

In order to convict an accused the Jury must have agreed that the same two or more acts were committed by the accused.  That is, the Jury cannot find an accused guilty where, for example, 6 find proved the accused committed 2 acts while the other 6 find proved he committed 2 different acts; or some other combination.  All 12 (or 10 of the 12 after four hours) must find the same acts proved before a guilty verdict can be returned.  This is referred to as the requirement for ‘extended unanimity.’

Mr Chiro was alleged to have committed multiple acts of sexual abuse over an extended period of time, some of them more serious than others.

The High Court held that although it was known that the Jury had found that at least 2 acts of sexual abuse had been committed, the Judge could not know which of those acts of abuse had been found proved.  In accordance with standard practice at the time, the Judge had not asked the Jury which acts they had found proved which she was entitled to do.

The High Court therefore held that the Defendant should be sentenced on the ‘fiction’ that the Jury had found proved only the two least serious acts of abuse as alleged against him.

As a result of the decision in Chiro, the South Australian Parliament enacted legislation to amend the offence of persistent sexual exploitation and also to overcome the sentencing issue for those who had been convicted under the previous legislation.  However, this latter legislation was subsequently ruled invalid. You can read the blog on that issue here.

If you or someone you know needs advice on these issues, please call us on 8227 2322.



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