An addition to the body of law on the burden and standard of proof applicable to sentencing hearings appeared over the wires from Western Australia yesterday: Law v Western Australia [2009] WASCA 193

It borrows heavily from our own R v Storey [1998] 1 VR 359. The prosecution have to prove aggravating facts in a sentencing hearing beyond reasonable doubt. The defence have to prove mitigating facts on the balance of probabilities. The parties are obliged to lead admissible evidence if the other party disputes an assertion made from the bar table, or the sentencing judge refuses to accept it.

In Law v WA, a burglary occurred at a garden tool shop overnight. The offender(s) went in through the roof, disabled the alarm system and cleaned the place out. The accused was identified as a suspect via a palm print found in the roof space. He opted for an early plea and at his sentencing hearing his lawyer put to the court,

My client was in desperate need of money at the time.

His instructions are as follows in respect of the incident per se. He had been travelling to his residence when he saw a silhouette of two persons on the roof of the building referable to this burglary. Incidentally, your Honour, his recollection of the time is somewhat different from that on the material facts. He thought it was later, about 10-ish or so in the evening.

He returned to his home, thinking about what he had seen and no doubt appreciating that those two people were getting into the place. He resolved to return and did return to the premises with another. He made his way to the roof and found the cavity and followed it, finding his way ultimately to the showroom.

He and the other took items of an electrical nature from the showroom but my instruction further is that some other items were clearly – clearly items already on the list as described by my learned friend had been taken. Specifically, my client took a mower for his – that he particularly took by himself and a couple of other items of electrical – a couple of other electrical items. He ultimately took those items to a pub and sold them. The money that he received went towards unpaid debts as disclosed.

The prosecutor advised the sentencing judge that the State did not accept the facts as put by the accused’s counsel. He made further submissions challenging the accused’s account, and pointed out that it was unlikely, had the accused committed a separate burglary unrelated to the one where the majority of items had been stolen, that he would have chosen to make his entry through the roof, rather than the large roller-door which had been left open once entry had been gained.

The judge did not expressly say that he was rejecting the accused’s account, but proceeded to impose just over two years immediate imprisonment. The accused appealed, arguing that the judge should not have rejected his version of events as it had not been disproven.

The WA Court of Appeal refused the appeal, noting that no evidence had been called in support of the accused’s story, either.

41 The sentencing hearing bears the hallmark of a strategic decision by the appellant’s counsel to secure a significant discount on the appellant’s sentence for his fast-track plea of guilty, and then to endeavour to mitigate the seriousness of the offence by advancing a version of events from the bar table in the hope that it would weigh favourably on the mind of the sentencing judge, without exposing the appellant to the palpable risks of giving sworn evidence.

After the introduction of the Evidence Act 2008 here next year, s 4 provides that the rules of evidence will apply to sentencing hearings on the application of a party to the proceeding and when the presiding judicial officer considers it to be in the interests of justice.