Under WA law, a sentencing judge may take into account an offender's intention to carry out a threat to kill as an aggravating factor when sentencing for an offence under s 338B of the Criminal Code, even though such intention is not an element of the offence and could have supported conviction for a more serious offence under s 338A. The former requirement under s 582 of the Code to charge circumstances of aggravation in the indictment was deleted by the 1982 amendments, and s 7(3) of the Sentencing Act 1995 now permits uncharged circumstances of aggravation to be taken into account as aggravating factors provided the offender is not subjected to a greater statutory penalty than that applicable to the offence of conviction. The precise scope of the De Simoni principle in WA in light of these amendments was left open by Steytler J.
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