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