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Sentencing Act 2002

Sentencing purposes and principles, and provisions of general application - Proof of facts

24: Proof of facts

You could also call this:

"How the court decides what facts are true when sentencing you"

Illustration for Sentencing Act 2002

When a court is deciding your sentence, they can accept some facts as true. You and the prosecutor might agree on some facts, and the court can accept those. The court must accept facts that are essential to your guilty plea or the finding of guilt.

If you and the prosecutor disagree on a fact that is important for your sentence, the court will tell you how important that fact is. The court will also say how it might affect your sentence. You or the prosecutor can then give more evidence to prove that fact, unless the court thinks there is already enough evidence from the trial.

The prosecutor must prove some facts beyond a reasonable doubt, like facts that might make your sentence worse. You must prove some facts on the balance of probabilities, like facts that might make your sentence better, if those facts are not about the offence or your part in it. Either you or the prosecutor can question each other's witnesses.

A fact that might make your sentence worse is called an aggravating fact, and a fact that might make your sentence better is called a mitigating fact. The court will decide if these facts are true and how they might affect your sentence. The prosecutor and you can give evidence and question witnesses to help the court make its decision.

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Part 1Sentencing purposes and principles, and provisions of general application
Proof of facts

24Proof of facts

  1. In determining a sentence or other disposition of the case, a court—

  2. may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
    1. must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

      1. If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—

      2. the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
        1. if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
          1. the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
            1. the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:
              1. either party may cross-examine any witness called by the other party.

                1. For the purposes of this section,—

                  aggravating fact means any fact that—

                  1. the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
                    1. the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

                      mitigating fact means any fact that—

                      1. the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
                        1. the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

                        Notes
                        • Section 24(1)(a): amended, on , by section 7 of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).
                        • Section 24(2)(b): amended, on , by section 7 of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).
                        • Section 24(2)(c): amended, on , by section 3 of the Sentencing Amendment Act 2004 (2004 No 68).