Category: Criminal law

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Submissions as to the bounds of the range prohibited; Barbaro v The Queen

The prosecution may make a submission that a custodial or non-custodial sentence is appropriate in a particular case: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 29.12.4; Legal Profession Uniform Conduct (Barristers) Rules 2015, r 95(d).

However, a prosecutor is not required, and should not be permitted, to make a submission as to the bounds of the available sentencing range or to proffer some statement of the specific result: Barbaro v The Queen at [7], [39]. Such a statement is one of opinion and is neither a proposition of law or fact which a sentencing judge may properly take into account: Barbaro v The Queen at [7], [39], [43], [49]. It is not the role of the prosecution to act as a surrogate judge: Barbaro v The Queen at [29]. Allowing prosecutors to proffer a view of the sentencing range assumes they will determine the range dispassionately. But in cases where the offender has, or will, assist authorities or where a plea of guilty avoids a very long and costly trial, the prosecutor’s view cannot be dispassionate: Barbaro v The Queen at [32].

The court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113 had cause to clarify the ambit of Barbaro v The Queen specifically on the question whether a court could receive and accept submissions regarding agreed penalties in civil penalty proceedings. The court held that the basic differences between criminal prosecution and civil proceedings provide a principled basis for excluding the application of Barbaro v The Queen from civil proceedings and so the parties were therefore entitled to make submissions as to agreed penalty: Commonwealth of Australia at [1], [56]; [68]; [79]. French CJ, Kiefel, Bell, Nettle and Gordon JJ at [40] reiterated that the Crown’s opinion as to an appropriate length of sentence in criminal proceedings is irrelevant (footnotes excluded) at [56]:

… in criminal proceedings the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge (consistently with the jury’s verdict) and the judge’s relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle. There is no room in an exercise of that nature for the judge to take account of the Crown’s opinion as to an appropriate length of sentence. For the purposes of imposing a criminal sentence, the question is what the judge considers to be the appropriate sentence. Nor can there be any question of a sentencing judge being persuaded by the Crown’s opinion as to the range of sentences open to be imposed. As was observed in Barbaro, apart from the conceptually indeterminate boundaries of the available range of sentences and systemic problems which would likely result from a criminal sentencing judge being seen to be influenced by the Crown’s opinion as to the available range of sentences, the Crown’s opinion would in all probability be informed by an assessment of the facts and relative weighting of pertinent sentencing considerations different from the judge’s assessment. That is why it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences

In “The prosecutor’s role in sentencing” (2014) 26(6) JOB 47 at 48, Basten JA and Johnson J, writing extra-judicially, said:

the lesson [to be derived from Barbaro v The Queen] is that the prosecution should provide more, rather than less, assistance. As the High Court noted, the statement of a range is at least unhelpful and probably misleading if the underlying elements are not articulated. The underlying elements will include: (a) the facts of the particular case; (b) the maximum penalty and standard non-parole period (if any); (c) mitigating and aggravating factors identified by the relevant statute; (d) if parity is an issue, the sentences imposed on co-offenders; (e) sentencing statistics (if useful) and (f) details of comparable cases

Barbaro v The Queen did not alter the pre-existing duty of the prosecutor to assist the court by the making of submissions as to comparable and relevant cases: DPP (Cth) v Thomas [2016] VSCA 237 at [178] citing Matthews, Vu and Hashmi v The Queen (2014) 44 VR 280, 292; [27]–[28] and R v Ogden [2014] QCA 89 at [7].

See Barbaro v The Queen

Source: Sentencing Bench Book https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/obligations_of_the_parties.html

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Adequacy of reasons in a criminal case

By Dr William Higgs, Barrister

The general principles in relation to the evaluation of the adequacy of reasons are well established (Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112] (Quinlan CJ, Murphy & Beech JJA). Necessarily the content and detail of reasons will vary according to the nature of the jurisdiction being exercised and the subject matter of the case ( DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 (DL v The Queen) [32] (Kiefel CJ, Keane & Edelman JJ). In the context of a criminal trial heard by judge alone, the High Court most recently described the failure to resolve a particular dispute in the following terms:( DL v The Queen [33] (Kiefel CJ, Keane & Edelman JJ) )


At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

‘Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.’

In the case of S v The State of Western Australia [2021] WASCA 154, the following commentary is of practical assistance.

“In the present case, the challenge to the adequacy of the learned trial judge’s reasons, which we accept to have been made out, rested principally on the way in which her Honour dealt with the evidence of the appellant.
First, while the learned trial judge stated that she rejected the appellant’s evidence (including his denials of offending), her Honour did not provide any reasons for having rejected that evidence. In the context of her Honour’s rejection of his evidence the only two matters referred to by the learned trial judge were:

(a) that the appellant’s evidence as to the opportunity to have committed the offence was consistent with that of Z; and

(b) that there was no motive or reason for the appellant to have committed the offence.


Neither of these matters was a reason for rejecting the appellant’s evidence. The first (opportunity) was, at best, neutral as to the credibility and reliability of his evidence and the second (lack of motive) was in the appellant’s favour.
Of course, it may be accepted that, in a case of ‘word against word’ (as her Honour recognised this case to be), the advantages of the trial judge having seen and heard the witnesses may be such that demeanour and the impression formed by the trial judge as to the credibility and reliability of the witnesses may assume particular importance. In that case, the legitimate use of such impressions and demeanour may be difficult for the trier of fact to articulate. A trial judge is not required, in that regard, to embark on an infinite regression of reasons for reasons.” (Child and Adolescent Health Service v Mabior by next friend Kelei [2019] WASCA 151; (2019) 55 WAR 208 (Mabior) [100] (Quinlan CJ, Murphy & Pritchard JJA).)