The role of the prosecutor in sentencing proceedings
Brett Thomson, A/Assistant Crown Solicitor
Barbaro v R; Zirilli v R  HCA 2 – 12 February 2014
The High Court recently gave guidance as to the submissions a prosecutor may make on the range of sentences which may be available to a court.
The circumstances of the case were that in the sentence proceedings of B and Z in the Supreme Court of Victoria, the sentencing judge had made it clear that she did not seek, and would not receive, any submission from the prosecution about what range of sentences she could impose upon each applicant. B and Z pleaded guilty to serious offences and were sentenced to terms of imprisonment.
The applicants argued in the High Court that the prosecution should have been permitted or even required to, submit fixed ranges of sentences to the court for two reasons; first, plea agreements had been made and the issue had been settled on the basis of the prosecutor's view of the sentences available. Secondly, it was argued that the defendants were denied the opportunity availing themselves of the prosecutor's submissions to the court.
Previously in Victoria, as a result of what was said by the majority in MacNeil-Brown (2008) 20 VR 677 a practice had developed of a sentencing judge asking counsel for the prosecution to make a submission as to the "available range" of sentences.
The High Court held (per French CJ, Hayne, Kiefel Bell JJ, and Gageler J separately) that the prosecution is not required and should not be permitted to make submissions as to the bounds of the range of sentences which may be imposed upon an offender.
To the extent to which MacNeil-Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled.
At paragraph  of the judgment the majority stated:
"The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed. That being so, the prosecution is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge."
At paragraph  the majority further stated:
"The outcome of any discussions between the parties, and any hope or expectation which an offender may have entertained as a result, is not relevant to the task of the sentencing judge."
At paragraph  the High Court endorsed the approach to sentencing referred to in Hili v The Queen  HCA 45; (2010) 242 CLR 520, where it was stated that in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands only as a yardstick against which to examine a proposed sentence.
Barbaro's case and the application of the principles set out have been referred to in a number of recent cases referred to below.
R v Costin  QDC No. 39 (19 February 2014)
In this case counsel for the defence sought to provide to the Court a defence range of sentences. It was argued on behalf of the defence that a defence range is different to a prosecution range. His Honour Smith DCJ held that whilst there may be some differences the reality is that it does not alter the characteristic of such statements being a statement of opinion. Accordingly, the Court did not allow the defence to place a range before the Court.
The next question was whether the defence could contend for a specific sentence. In that regard the Court had regard to the following passage in Barbaro at  where it was held:
"It is neither the role nor the duty of the prosecutor to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall."
In Costin his Honour found that the High Court had made no such statement concerning the role of defence counsel. In doing so his Honour stated that one could understand why the High Court has prohibited a prosecutor from making such a submission. The roles and the duties of the prosecutor are quite different to that of defence counsel. The Court therefore found that there was a distinction to be made between the role of defence and that of prosecutor. Accordingly the Court permitted the defence counsel to make a submission as to a specific sentence.
R v Ogden  QCA 89 (29 April 2014)
In this case the applicant applied for leave to appeal against the sentence imposed in respect of two counts of defrauding the Commonwealth and three counts of obtaining a financial advantage by deception contrary to Commonwealth legislation. He had received a sentence of five years imprisonment with a non-parole period of 20 months.
One of the grounds of complaint was that the sentencing judge took into account a submission by the prosecutor that "a head sentence in the range of between five and five and a half years with approximately three years' time to serve would be appropriate in the circumstances".
At the hearing of the application for leave to appeal, the applicant's counsel informed the Court that the applicant did not press the argument.
The Queensland Court of Appeal found that that concession was appropriate. At paragraph  in the judgment the Court stated as follows:
"Although the prosecutor at the sentence hearing followed the then common practice of making submissions about the bounds of the permissible sentences which the majority in Barbaro has since condemned, the sentencing judge did not take those submissions into account when formulating a sentence. Instead the sentencing judge took into account the comparable sentencing decisions which the prosecutor and defence counsel had helpfully provided to the sentencing judge and analysed in submissions.
The prosecutor and defence counsel plainly did not contravene any practice which is now proscribed by Barbaro merely by supplying comparable sentencing decisions to the sentencing judge and making submissions about the similarities and the differences between the circumstances and seriousness of those cases and those of the present matter.
Indeed, it was part of the prosecutor's duty to assist the sentencing judge by supplying those comparable sentence decisions. More relevantly for present purposes, the sentencing judge was right to take the comparable sentencing decisions into account for guidance or as a "yard stick" against which to examine the proposed sentence. That is what the sentencing judge did."
Mulvihill  NSWSC 443 (16 April 2014)
This was a case where her Honour Fullerton J sentenced the defendant following his conviction for a charge of murder. At paragraphs  –  of the judgment it is indicated that both counsel provided separate schedules of sentences imposed for murder in the Supreme Court at first instance and considered by the Court on appeal. Her Honour stated as follows:
"I have considered that material in accordance with the approach most recently stated by the High Court in Barbaro v R; Zirilli v R, where the Court endorsed the correctness of the approach in Hili v R. It was not suggested by either counsel that any particular case or combination of cases to which I was referred mark the outer bounds of my sentencing discretion. To the extent that the cases evidence a range of sentences for murder committed in comparable circumstances to those which I am concerned by offenders with similar subjective circumstances to this offender (a range which I have not been able to discern with any precision), I do not regard myself as obliged, by reference to the case law, to impose a sentence of any particular length or structure."
Australian Competition and Consumer Commission v Energy Australia Pty Ltd  FCA 336 (4 April 2014)
In this case Middleton J had the opportunity to consider the application of Barbaro in the civil context in the Federal Court. These were proceedings brought by a regulator and commonly include so called pecuniary penalties. It had been an accepted practise in such cases in the Federal Court for the parties to make joint submissions as to agreed penalties.
His Honour stated at paragraph  that on a broad reading of the majority reasoning in Barbaro, it might be thought that the Federal Court should not take into account submissions of parties as to an agreed penalty amount in civil penalty proceedings. However, his Honour then considered that the decision in the High Court did not go that far or that it implicitly overruled Full Federal Court authority which had been applied on numerous occasions.
At paragraph  Middleton J noted that there are important differences between the criminal sentencing context and the civil penalty context, and the position of Crown prosecutors and regulators.
In particular, Crown prosecutors have a distinctive function and obligations deriving from the character of a prosecution. They have a duty to present the case for the Crown independently of the interests of any person or agency. It is not their function to seek a particular outcome. They therefore proceed in a position which is quite different from that of a party to a civil proceeding with a particular interest in the outcome.
A regulator bringing civil penalty proceedings stands in a different position to that of a prosecutor in a criminal proceeding. By its very establishment and functions, such a regulator does not have, and is not expected to have, the independent role and characteristics of the prosecutor.
In paragraph  his Honour stated that the very purpose of proceedings brought by a regulator is to secure a particular regulatory outcome. Accordingly, the very process undertaken by a civil regulator makes it a party with a different interest and different functions from the prosecutor.
Ultimately his Honour found that he was bound by other decisions of the Full Court including a decision of N W Frozen Foods Proprietary Ltd v Australian Competition & Consumer Commission  FCA 1134 (20 December 1996) where it was agreed that a regulator and respondent could jointly propose specific penalty amounts to the Court.
Peiris v R  NSWCCA at 58
Date: 17 April 2014
Before: Leeming JA, Button J and RS Hulme AJ
This was an appeal against conviction and sentence. The appellant had been found guilty by a jury in the District Court on two counts on an indictment. He was acquitted on one count of aggravated sexual intercourse without consent. Count one on which he was convicted was an indecent assault contrary to s. 61M(1) of the Crimes Act 1900 (in the form it then took), with the circumstance of aggravation being that the victim was ten years old. Count three was an indecent assault contrary to s. 61M(2) (in its current form), the victim being fourteen years old.
The conviction appeal was dismissed.
In relation to the sentence appeal, the first ground of appeal was that the sentencing judge had erred in not taking into account assistance to authorities. The second ground was that the sentencing judge erred in taking into account a breach of trust as an aggravating factor for both offences. The third ground was that the sentencing judge erred in the assessment of the objective seriousness of the offences. The fourth ground was that the sentence was manifestly excessive. Included within this ground was a much narrower complaint based on the sentencing judge's reliance on statistics from the Local Court.
In relation to ground one, it was found that there was no error established, see paragraph . In relation to ground two without reaching the final view it was found that nothing of substance turned on that ground. In relation to ground three, no error was demonstrated.
The sentencing judge had said that he had considered the sentencing statistics for the relevant offences in the Local Court as well as the District Court. He said that he had examined the Public Defender's website. His Honour said that the sentences which he imposed were within the range of comparable sentences for the relevant time period for the same offences. However, the sentencing judge did not in his sentencing remarks disclose the statistics to which he had had regard.
The appellant had been sentenced to a term of imprisonment for 12 months with a non-parole period of six months in relation to count three, and 17 months imprisonment with a non-parole period of eight months in relation to count one. The total effect of the sentence was 18 months imprisonment with a non-parole period of nine months.
The Court of Criminal Appeal ("CCA") found that it was appropriate to examine the sentences that were imposed. The Court confirmed that for all their limitations, sentencing statistics can and should provide guidance as a useful yard stick. Hili v R  HCA 45 and Barbaro v R  HCA 2 at  were cited as authorities.
What emerged from the CCA's scrutiny of the available sentencing database was that custodial sentences were actually a smaller percentage of outcomes than suspended sentences.
The statistics ultimately revealed that most offenders who are sentenced in the Local Court (between 57% and 64%) were not sent to prison.
The CCA ultimately rejected the broad complaint that the sentence was manifestly excessive. However the CCA went on to consider the narrower ground of complaint being the reliance of the sentencing judge on statistics including those from the Local Court. The CCA found that those aspects of his Honour's sentencing remarks disclosed error. The findings of the sentencing judge about the level of criminality were impossible to reconcile with the sentences imposed by the Local Court, despite statements of the judge to the contrary.
The Court found that the custodial sentence imposed could not be reconciled with the "yard stick" which could be discerned from the sentencing data, given that the objective seriousness was found to be below the mid-range.
On that basis the Court determined that the sentences imposed should have been suspended. Accordingly the appellant was re-sentenced to suspended sentences.
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