Last year in R v MacNeil-Brown [2008] VSCA 190 the Court of Appeal decided that prosecutors can make submissions to a court about the appropriate sentencing range.

This was one of many in a long line of similar cases, such as R v Tait & Bartley (1979) 24 ALR 473, R v Casey & Wells (1986) 20 A Crim R 191, and Economedes (1990) 58 A Crim R 466.

There are two broad camps amongst judicial officers when it comes to hearing from prosecutors on appropriate sentence range.

The first camp thinks that, if asked, prosecutors ought to be able to provide meaningful submissions to a sentencing Court. That is part of their duty to assist the Court avoid appealable error — itself a corollary of prosecutors’ right of appeal against sentences that are wrong at law. It’s also part of their role as the party that brings the charges before the Court.

The second camp thinks that it doesn’t help a sentencer to hear from either party. It’s the judicial officer’s role to consider all the relevant matters: deciding the relevant sentencing facts and how much weight to give them; aggravating and mitigating facts; personal factors of the defendant and victims. (In Markarian v The Queen (2005) 228 CLR 357 the High Court said that intuitive synthesis is the preferred sentencing method.) Hearing the prosecutor say one thing while the defendant says another doesn’t help that process.

In MacNeil-Brown, a bare majority of 3:2 said:

It is only reasonable, in our view, for the sentencing court to expect the prosecutor to make a submission on sentencing range if

(a) the court requests such assistance; or

(b) even though no such request has been made, the prosecutor perceives a significant risk that the court will fall into error regarding the applicable range unless such a submission is made: R v MacNeil-Brown [2008] VSCA 190 at [3] per Maxwell P, Vincent and Redlich JJA.

But, they didn’t say if that prevents a prosecutor from making sentencing submissions in other circumstances.

Did the majority mean “It is only reasonable…”, or, “It is only reasonable to hear from a prosecutor in these two circumstances”?

I think they meant the second option, because of the discussion about the help advocates can provide to sentencers by providing relevant sentencing statistics and similar cases. Consider these comments:

41. A submission on sentencing range is no different from any other submission which counsel makes, whether in criminal or civil proceedings. A submission conveys the considered judgment of counsel, based on analysis and evaluation of the relevant facts and the applicable law. The drawing of comparisons with, and distinctions between, other cases is a routine part of the making of submissions, as is argument seeking to extrapolate from one case to another. A submission on sentencing range has all of these characteristics.

42. To suggest, as counsel for the appellants did in these appeals, that a submission on sentencing range is merely ‘an expression of opinion’ is to mischaracterise counsel’s function. A submission on sentencing range is a submission of law. It identifies the ambit within which – according to the submitting party – the sentencing discretion may lawfully be exercised in the circumstances of the particular case. It is a submission explicitly formulated to assist the sentencing judge to avoid appealable error, that is, error of law.

…

44. …Our entire adversarial system is based on the premise that the judge will be assisted by competing submissions from both sides and will be able impartially to decide which of the submissions is to be preferred.

45. So too with a submission on sentencing range. It will self-evidently be of assistance to a sentencing judge to be informed by the prosecutor that, in the Crown’s submission, a sentence in the nominated range would be correct in law. No judge is bound to accept counsel’s submission on any point, and a sentencing judge is entirely free to come to a different conclusion…

Then later, the majority praised defence counsel for providing sentencing statistics and cases:

74. On the plea, counsel for the defendant accepted that a term of imprisonment would be imposed on his client and provided to the judge what was described as ‘material in relation to sentencing of like offenders.’ Two documents were provided, both having been downloaded from the website maintained by the Judicial College of Victoria. The first was a table containing summaries of more than 20 Court of Appeal decisions, in the period 2004-07, dealing with sentencing for comparable offences (obtaining financial advantage by deception, obtaining property by deception and conspiracy to defraud). The second document was headed ‘High Value Offending’. It listed nine cases (eight from the Court of Appeal), identifying in each case the amount misappropriated and the sentence imposed. For reasons we have already given, this was exemplary conduct on the part of defence counsel. In aid of the submissions which he proposed to make, he furnished the judge with a body of comparable sentencing information. Counsel then identified for the judge which of the cases in the first table could, in his submission, be regarded as comparable to the case before the Court.

I’d be surprised if a sentencing Court would refuse similar help from a prosecutor.

Of course, this doesn’t mean prosecutors can or should jump up at every opportunity to say something about sentence. But in those cases that require additional work, I think they not only can, but must be able to assist the Court as much as possible.

What’s more, I think the law obliges practitioners appearing on behalf of the prosecution to do this — even in front of judicial officers who might fall in the second camp.

Of course, with that obligation comes the responsibility to say something meaningful and legally accurate — which means prosecutors may often need to go away and do some serious preparation for a sentencing hearing, much as they might for a contested hearing.