The High Court has delivered judgment in the related cases of Barbaro v The Queen and Zirilli v The Queen, which examines the role of the prosecutor in making submissions as to the available range of sentences for an offence.
In each case the appellants pleaded guilty to various drug-related offences under the Commonwealth Criminal Code. Following discussions between the appellants legal representatives and the Crown prosecutor, the appellants had entered into a plea agreement with the Crown. In the course of those discussions the Crown prosecutor had provided an indicative sentencing range to the appellants’ legal representatives.
In R v MacNeil‑Brown (2008) 20 VR 677, the Court of Appeal of the Supreme Court of Victoria held that if a sentencing judge asked, the prosecution was bound to submit what the prosecution considered to be the available range of sentences that could be imposed on an offender. 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.
In the present case, 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. The appellants challenged their sentences in the Court of Appeal, including on the basis that it was procedurally unfair for the sentencing judge to have refused to hear a submission from the prosecution on the available range of sentences in light of the discussions between the appellants and the prosecution.
The High Court unanimously dismissed the appeals. The plurality considered that the appellants’ arguments depend on two flawed premises. The first was that the prosecution is permitted (or required) to submit to a sentencing judge its view of what are the bounds of the range of sentences which may be imposed on an offender. That premise, in turn, depended upon a second flawed premise, namely that such a submission is a submission of law. The plurality held that the prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. A statement of the bounds of the available range of sentences is a conclusion which depends upon identifying (and in many cases assuming) the facts and circumstances relevant to the offence and the offender and striking a balance between the many competing considerations which may bear upon the sentence. 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.
Not only is the prosecution not required to make such a statement of bounds to a sentencing judge, it should not be permitted. This is because the statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution's view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.
Gageler J concurred in the result, but departed significantly from the plurality’s reasoning. His Honour considered that a submission that a sentence within a given range would or would not be available to be imposed by a sentencing court in the circumstances of a particular case is a submission of law. It is a submission that a sentence within that range would or would not meet a limiting condition of the discretion conferred on the court to sentence for the offence, and therefore would or would not fall within the limits of a proper exercise of the sentencing discretion. His Honour regarded R v MacNeil‑Brown correct to hold that the prosecution duty to assist a sentencing court to avoid appealable error requires the prosecutor to make a submission on sentencing range if the sentencing court requests such assistance or if the prosecutor perceives a significant risk that the sentencing court would make an appealable error in the absence of assistance.
However, in this case the experienced sentencing judge made clear that she would derive no assistance from a prosecution submission as to the available range. The appellants did not suggest that the prosecution in those circumstances failed to perform its duty to assist the court to avoid appealable error. Nor did the appellants suggest that the sentence imposed on them was “unreasonable or plainly unjust” on the facts found by the sentencing judge. It was for that reason that his Honour joined in the orders of the plurality to dismiss the appeals.