Have you been served with a Court Attendance Notice? Have you read the Police Facts and thought “that’s not the way it happened”. More often than not, competent criminal defence lawyers will try and negotiate with the police in order to amend the charges to reflect their client’s honest interpretation of the allegations.
What Is The Fact Sheet?
The Facts Sheet is a narrative the police allege surrounding the circumstances of the offence and any aggravating factors. These allegations are not set in stone and can/should be negotiated where appropriate. This course of action is especially recommended if you have instructed your lawyer to enter a plea of guilty on your behalf.
The golden rule is that everything in the Facts Sheet must be relevant to a charge on the indictment. Unfortunately, Police will often include extraneous material and irrelevant facts in order to unnecessarily aggravate the offence and paint the accused in a bad light. This is where your criminal defence lawyer should argue that the De Simoni Principle applies.
The De Simoni Principle
The De Simoni Principle provides that a sentencing court cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence. A common scenario is when police have charged someone with common assault yet include a narrative of facts which would warrant a charge of assault occasioning actual bodily harm
The Case of R v De Simoni (1981) 147 CLR 383
Mr De Simoni broke into houses and stole property to fund his drug dependency. On one occasion he broke into what he believed was an empty house and was surprised in the dark by the occupant. He believed the occupant was a young man and he was in danger. He defended himself and only afterward did he find out the occupant was an elderly lady.
Mr De Simoni showed immediate remorse. He helped the elderly lady into a chair, apologised to her and brought her a glass of water and a telephone so she could call someone to assist her before he fled the scene.
Mr De Simoni was subsequently charged and pleaded guilty to Robbery. However, the Fact Sheet alleged that he had ‘wounded’ the victim which amounted to a more serious offence of Robbery in Circumstances of Aggravation. The trial court took the wounding into account and effectively sentenced De Simoni for the more serious offence even though he had not been charged with it.
The High Court found that the trial court had erred and should not have accepted Agreed Facts that amounted to a more serious offence than what had been charged. An offender can only be sentenced for the offence of which he is convicted. So a court must disregard any circumstances that would amount to a different offence.
Applying The De Simoni Principle
Going back to the example of a charge of common assault, this is violent offence where the accused makes non-consensual contact with a victim but fails to do ‘actual bodily harm’. In common terms, this would mean an assault which does not leave mark on the victims body. Should a mark be left on the victim as a result of the assault, then the charge would amount to the more serious charge of Assault Occasioning Actual Bodily Harm.
Should the police charge you with common assault, yet seek to tender facts in Court which would are aggravating to the point the assault left a mark on the body of the victim, the Court cannot find that the contact left a mark as the accused is not charged with Assault Occasioning Actual Bodily Harm.
Why Is this Important?
If you have decided that you would like to plead guilty to the offences you have been charged with, it does not mean that nothing can be done. Before considering a plea of guilty, your Criminal Defence Lawyer should have discussed the possibility of entering into negotiations with the Police in order to reduce the objective seriousness of the offence. It is therefore paramount that your lawyer explains not only the offences you are charged with, but also the corresponding facts which will be relied upon in Court. Should your lawyer allow particularly aggravating facts be tendered in Court, you could receive a penalty which is incommensurate with the actual offending.