Proof of facts

24 Proof of facts

(1)

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

(a)

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

(b)

must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2)

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,—

(a)

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:

(b)

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:

(c)

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:

(d)

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:

(e)

either party may cross-examine any witness called by the other party.

(3)

For the purposes of this section,—

aggravating fact means any fact that—

(a)

the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b)

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—

(a)

the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

(b)

the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

Section 24(1)(a): amended, on 1 July 2013, by section 7 of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).

Section 24(2)(b): amended, on 1 July 2013, by section 7 of the Sentencing Amendment Act (No 2) 2011 (2011 No 93).

Section 24(2)(c): amended, on 7 July 2004, by section 3 of the Sentencing Amendment Act 2004 (2004 No 68).