SENTENCING — appeal against sentence — proceeds of crime offence — De Simoni error — whether sentencing judge took into account facts which would have amounted to a more serious offence — where facts were referenced in the context of mitigation and not aggravation of sentence — no error
SENTENCING — appeal against sentence — supply of prohibited drug offence — whether sentencing judge made appropriate findings of fact and assessment of objective seriousness — where Agreed Facts were brief — no error
Quick Take
1A sentencing judge's reference to facts that could constitute a more serious offence does not breach the De Simoni principle where those references are made only in the context of mitigating the offender's sentence (such as placing the offender lower in a drug supply hierarchy) and the judge does not actually punish the offender for the more serious offence.
2The brevity of a sentencing judge's assessment of objective seriousness is not erroneous where it reflects the limited factual material placed before the court in the Agreed Facts; a judge cannot be expected to make findings beyond the evidence tendered on sentence.
3Under the materiality threshold articulated in Farrugia v The King [2026] HCA 28, even if a sentencing judge conflated two counts, the error must be shown to have 'could realistically have affected' the sentence imposed — where indicative sentences for both counts were manifestly low, the threshold is not met.
