Citation: R v Geerlings [2019] NSWDC 83
Court: District Court of New South Wales
Date: 11 March 2019
Judge: Colefax SC DCJ
Background
The offender faced sentence proceedings in the NSW District Court on four charges committed from Burwood Local Court: aggravated break, enter and steal in company; possessing a shortened firearm without authority; possessing an unauthorised pistol; and supplying a significant quantity of MDMA.
In the lead-up to the sentence hearing, the Crown prepared and signed a document described as an "Agreed Statement of Facts." That document included, under the heading "Interview," several paragraphs recording the offender's own exculpatory explanations for the presence of firearms in his home and for having drugs on his person.
When the matter came before Colefax SC DCJ for sentence, it became apparent that the Crown did not, in fact, agree with those exculpatory accounts. The document purporting to set out agreed facts therefore contained material that was plainly contested.
Legal Issues
- Whether a document described as an "Agreed Statement of Facts" can properly include contentious or disputed material
- What consequences flow from the inclusion of unresolved factual disputes in a purportedly agreed facts document
- Whether the sentence hearing could proceed as listed, or whether a contested facts hearing was required
Decision
Colefax SC DCJ identified a clear and recurring problem: documents labelled "Agreed Statement of Facts" frequently contain assertions that, on examination, are not agreed at all. His Honour expressed the view that this practice "must stop."
In this case, the Crown did not agree with the offender's explanation for why firearms were found in his home, nor with his account of how he came to possess a valuable quantity of drugs. Including those accounts in a document presented to the court as "agreed" was, in the court's view, unexplained and unacceptable.
The practical consequence was significant. The entire hearing date was wasted, and the matter could not proceed to sentence. A contested facts hearing became necessary before any sentence could be imposed. A contested facts hearing is a separate hearing in which the parties lead evidence and the court resolves disputed facts relevant to sentencing.
The court also warned the offender directly: if he did not succeed at the contested facts hearing, his plea discount would likely be substantially reduced, or potentially eliminated entirely, depending on the length of the hearing.
Orders Made
- Matter adjourned to 16 April 2019 for a one-day contested facts hearing before Colefax SC DCJ
- Form 1 matters not certified; stood over to 16 April 2019 (with the offender to indicate consent to section 166 certificates through counsel)
- Bail refused; a section 77 warrant to issue
Key Takeaways
- The District Court identified and criticised the practice of including disputed or exculpatory material in documents described as "Agreed Statements of Facts," describing it as a recurring problem that must stop.
- An agreed statement of facts should contain only facts that are genuinely agreed upon by both parties; contested assertions have no proper place in such a document.
- Where a purportedly agreed facts document contains unresolved disputes, the sentencing hearing cannot proceed and a contested facts hearing becomes necessary, wasting court time and resources.
- A plea discount for a guilty plea may be substantially reduced or eliminated where a contested facts hearing is required, particularly if the hearing is lengthy.
- Producing an inaccurately labelled agreed facts document has procedural consequences for all parties, including delay and the loss of hearing time.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166 (certificates for matters on Form 1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 77 (warrant provisions)
Cases: No cases were cited in the judgment.