In Western Australia, when an accused pleads guilty to a substantive offence but disputes circumstances of aggravation that increase the maximum penalty, the disputed circumstances must be tried by jury or by judge alone pursuant to an order under s 118 of the Criminal Procedure Act 2004 (WA), and cannot be resolved by a sentencing judge in a trial of issues under s 146 of the Sentencing Act 1995 (WA) (per Mazza JA, Pullin JA agreeing; Martin CJ contra). However, failure to follow this procedure will not result in a successful appeal where the appellant consented to the procedure and no substantial miscarriage of justice occurred. The distinction between 'circumstances of aggravation' (which increase the maximum penalty and must be charged and convicted) and 'aggravating factors' (which increase culpability and may be taken into account regardless of charging) is confirmed.
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