“No” to prosecution submissions on sentencing range.

In 2008, the Victorian Court of Appeal decided in R v MacNeil-Brown (2008) 20 VR 677 (discussed here) that when asked, prosecutors were required to submit what the prosecution considered was an available range of sentences to impose on an offender, or if the prosecution thought the court would otherwise fall into error.

Even then, it was a 3-2 decision, and that divergence of views is reflected in daily practice in Victorian courts.

But the High Court put a stop to all that yesterday when it delivered its judgment in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2.

The majority said quite simply:

[23] 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. The practice to which MacNeil-Brown has given rise should cease. The practice is wrong in principle.

Pasquale Barbaro and Saverio Zirilli pleaded guilty to various offences related to large-scale ecstasy importation and trafficking, after negotiations with the prosecution. Apparently, the prosecution considered that the sentencing range for Barbaro was 32 to 37 years (with a non-parole period of 24 to 28 years), and for Zirilli, 21 to 25 years (with a non-parole period of 16 to 19 years).

But that all came to nought at their sentencing hearing when the sentencing judge said she didn’t want to hear from the prosecution about a sentencing range.

Barbaro received a life sentence (non-parole period of 30 years) and Zirilli received 26 years (with a non-parole period of 18 years).

Both men asked to appeal to the High Court. They had two arguments.

First, plea agreements were made and the cases settled or resolved to pleas, because they expected the prosecution would advise the Court what it thought was the appropriate sentencing range.

Second, they were disadvantaged by not being able to rely on those submissions.

The majority dealt with that pretty swiftly:

[6] The applicants’ arguments depend on two flawed premises. The first is 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, depends on the premise that such a submission is a submission of law. For the reasons which follow, each premise is wrong.

 They then went on to elaborate on that (see in particular [42] – [43]), and to lay down the law about who does what at the sentencing stage of proceedings.

[47] To describe the discussions between the prosecution and lawyers for the applicants as leading to plea agreements (or “settlement” of the matters) cannot obscure three fundamental propositions. First, it is for the prosecution, alone, to decide what charges are to be preferred against an accused person. Second, it is for the accused person, alone, to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender’s advisers can do anything more than proffer an opinion as to what might reasonably be expected to happen. Third, and of most immediate importance in these applications, it is for the sentencing judge, alone, to decide what sentence will be imposed.

The applicants’ allegations of unfairness depended upon giving the plea agreements and the prosecution’s expression of opinion about sentencing range relevance and importance that is not consistent with these principles. The prosecution decided what charges would be preferred against the applicants. The applicants decided whether to plead guilty to those charges. They did so in light of whatever advice they had from their own advisers and whatever weight they chose to give to the prosecution’s opinions. But they necessarily did so knowing that it was for the judge, alone, to decide what sentence would be passed upon them. (Citations omitted.)

One of the arguments against this might be that an offender doesn’t have much idea what sentence they might get if they plea to some or all offences, and they’re subject to the judge’s opinion about the proper sentence.

Once response to that is that that’s what happens: judges have the responsibility for making decisions about sentence. It’s a bit like going on a game show and being unsurprised that the announcer might call you at random to “come on down”, or not.

But the other point is in what the High Court said in the quote above: offenders will get advise from their lawyers about the sentence they might expect, but with the caveat that the judge will decide.

The other point to note is that the High Court was only denying a role for the prosecution to submit its views about the range. But it is still open to the prosecution and defence — and probably required as a matter of practice and good advocacy, if not a matter of law — to refer to comparable cases and relevant sentencing statistics.

[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

What this means is that the parties will now need to advance only the foundation for the opinion they might have once expressed, rather than the opinion (of the proper sentence length) itself.

One side effect of this might be a much more intense focus on the sentencing facts agreed between the parties, because they will now take on an even greater significance in sentencing proceedings. It could be that some cases run to trial simply because the parties can’t agree on that, or else, there might be an increase in contested sentencing hearings.