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- Whether sentencing judge bound to take view of facts most favourable to offender – Filippou v The Queen (2015) 89 ALJR 776;  HCA 29
Updated 31 August 2015
Whether sentencing judge bound to take view of facts most favourable to offender
Proper basis for consideration of an appeal from a verdict in a judge alone trial – proper basis for consideration of facts on sentence – whether judge is required to take the most favourable view of the facts propounded by the offender even when the Crown cannot disprove a contra view of those facts
The appellant was found guilty following a judge alone trial of murder. The appellant did not contest using a weapon to kill the deceased but contended that he was provoked at the time to such an extent that his actions only amounted at law to manslaughter. The trial judge rejected the appellant’s claim to having acted under provocation and he was found guilty of murder.
On appeal, it was contended that the trial judge made errors of fact and also that those errors amounted to an error of law. It was also alleged that the verdict could not be supported by the evidence. The Court of Criminal Appeal rejected the appeal. It is not necessary to set out the Court’s reasoning in detail. The High Court accepted that provocation could not be made out on the evidence before the trial judge. In those circumstances, absent some serious misdirection of law, it was inevitable that the appeal would be dismissed.
The plurality of the High Court usefully summarised the principles to be applied when considering an appeal from a verdict in a judge alone trial, see –.
The appellant also contended that the trial judge had erred in her approach to sentencing. The factual circumstances in dispute were summarised by the Court at  as follows:
If it had been known to the court that the appellant brought the weapon to the scene, the judge would have been entitled to conclude that the appellant went to the scene at least contemplating the use of the weapon and, therefore, that his moral culpability was significantly greater than if the offences had been wholly spontaneous. In contrast, if it had been known to the court that the deceased brought the weapon to the scene, the judge would have been entitled to regard that as a factor which was favourable to the appellant, in the sense that it would have made it more likely that the first and possibly second shots were a spontaneous reaction to the situation with which the appellant was confronted.
It was submitted that, although the judge found it to be likely that the appellant had brought the gun to the scene of the killing, that fact was not proved beyond reasonable doubt and, as a consequence, the sentencing judge was bound to sentence the appellant on the basis that it was one or other of the deceased who had brought the gun to the scene of the killing.
This submission was firmly rejected by the Court. The submission was said to be directly inconsistent with the previous authority of R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464;  HCA 54 at – and, in some cases, lead to incongruous results. The Court found that where an offender propounds a factual scenario as to what occurred he must establish that scenario on the balance of probabilities.
 In a case like this, the choice is not between absence of proof beyond reasonable doubt of an aggravating circumstance and proof on the balance of probabilities of a mitigating circumstance, but rather between able of proof beyond reasonable doubt of an aggravating circumstance and absence of proof on the balance of probabilities of a mitigating circumstance.
In some cases, it is “not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard” at . The Court acknowledged that the position is different in some other jurisdictions, including England and New Zealand but found that justice is likely to be done if strict rules of proof are applied to the exercise of sentencing.
Result: Appeal dismissed and conviction and sentence affirmed.
Comment: It is often said in Court that a judge must sentence on the most favourable factual basis available for the offender. This is not the law. This judgement clarifies the position and is a timely reminder of the actual principles to be applied when determining aggravating and mitigating factors on sentence. The Crown must establish an aggravating factor relied on by it on sentence beyond reasonable doubt. An offender must prove a mitigating factor on the balance of probabilities. If either party fails to prove the factor propounded then the sentencing judge is free to ignore it and sentence on the facts that that judge finds proved in all the circumstances.
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