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.
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