The High Court will this morning deliver judgment in three appeals.
The first appeals are the related cases of Barbaro v The Queen and Zirilli v The Queen. In each case the appellants pleaded guilty to various drug-related offences under the Commonwealth Criminal Code. The appellants had entered into a plea agreement with the Crown. The Crown had provided an indicative sentencing range to the appellants’ legal representatives. A practice had developed in Victoria to prepare such an indicative sentencing range in order to make it available to the Court is requested by the court, or if the prosecutor believed there was a significant risk the court would fall into error if a submission as to range was not made. The sentencing judge made it plain that she did not want to hear submissions as to range from anyone, and would not take them into account. The sentencing judge proceeded to impose sentences outside the prosecution’s indicative sentencing range. At issue in the appeal is the extent to which the sentencing court is required to have regard to the prosecution’s indicative sentencing range, and the circumstances in which that indicative sentencing range should be taken into consideration.
The third appeal is Smith v State of Western Australia. In that case the appellant was convicted on two counts of indecent dealing with a girl under the age of 13 years. Following the return of the verdicts, an envelope was found in the jury room addressed to the trial judge. The envelope contained a note that said: “I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel.” The appellant sought an inquiry into the circumstances of the juror’s note, an application that was refused by the Court of Appeal. At issue in the appeal is the extent to which a so-called “exclusionary rule” that makes evidence of jurors’ deliberations inadmissible could operate to exclude evidence of the note.