Sentencing Bench Book — Procedural and evidential matters

Obligations of the parties

[1-200] The prosecutor

The duty of the prosecution at sentence is outlined by the High Court in Barbaro v The Queen (2014) 253 CLR 58 at [39]. It is “… to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases”. The court will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range: Barbaro v The Queen at [38]. A guilty plea does not relieve the Crown of its obligation to prove its case on sentence without assistance from the offender: Strbak v The Queen [2020] HCA 10 at [32].

The prosecutor has a “… duty to assist the court to avoid appealable error where a sentencing judge indicates the form (as opposed to the duration) of a proposed sentencing order and the prosecutor considers it to be manifestly inadequate”: 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 per French CJ, Kiefel, Bell, Nettle and Gordon JJ at [40] explaining the decision of CMB v Attorney-General (NSW) (2015) 256 CLR 346 at [63]-[64].

In CMB v Attorney-General (NSW), (2015) 89 ALJR 407 French CJ and Gaegler J had said at [38]:

The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that an ‘appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error’ fn R v Tait (1979) 24 ALR 473 at 477.

[1-203] Submissions as to the bounds of the range prohibited

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].

[1-205] Professional Rules and DPP Guidelines

The duty to avoid appealable error is reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015: r  95(c) and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015: r 29.12.3 and, potentially, r 19.2.

The Director of Public Prosecutions issues Prosecution Guidelines under s 13 Director of Public Prosecutions Act 1986. Chapter 2.4 addresses the obligations of the Crown at sentence and consolidates the case law on the subject, such as R v Tait & Bartley (1979) 24 ALR 473:

Guideline 2.4 The role of the prosecutor in sentencing [Issued March 2021]

The prosecutor has an active role to play in the sentencing process.

It is the duty of the prosecutor to present the facts of the case at sentence. Whenever possible a statement of agreed facts should be submitted (see Guideline 4.4).

If the offender is being sentenced after trial or hearing, the prosecutor should prepare a summary of the facts capable of being found by the judge or magistrate that is consistent with the verdict.

Where facts are asserted on behalf of the offender that are contrary to the prosecutor’s position on a matter of some significance to sentence, the prosecutor should identify areas in agreement and those to be determined following a hearing (often referred to as a ‘disputed facts hearing’).

The prosecutor must:

1. 

make submissions addressing the objective seriousness of the offence and the subjective circumstances of the offender where known

2. 

inform the court of any relevant authority or legislation bearing on the appropriate sentence

3. 

inform the court about the outcome of proceedings against any co-offender and provide copies of relevant material before the court that dealt with a co-offender

4. 

fairly test the evidence or assertions advanced for the offender where necessary

5. 

correct any error made on behalf of the offender during a sentence hearing

6. 

assist the court to avoid appellable error on the issue of sentence.

The prosecutor must provide reasonable notice to the defence of any witness required for cross-examination. If the prosecutor has been given insufficient notice of defence material to properly consider the prosecution’s position or verify defence assertions, an adjournment should be sought. Whether notice is insufficient will depend on the seriousness of the offence, the complexity and volume of the new material, the significance of the new allegations, the degree of divergence between the prosecution and defence positions and the availability of the means to check the material’s reliability.

A prosecutor may:

1. 

submit that a sentence of full-time detention is appropriate or that a sentence other than full-time detention is within range, but must not suggest or recommend a numerical sentence or a sentencing range in a particular case, unless by reference to a guideline judgment

2. 

provide statistical material and details of comparable cases where it would assist the court, indicating how the court would be assisted

A prosecutor must not in any way limit the discretion of the Director to appeal against the inadequacy of the sentence.

For prosecutorial obligations in respect of Form 1 offences, see Charge negotiations: prosecutor to consult with victim and police at [13-275] and Obligation on the Crown to strike a balance at [13-250].

Duty of disclosure

The prosecution’s duty of disclosure extends to disclosing material relevant to sentence proceedings: R v Lipton (2011) 82 NSWLR 123 at [82]. See also, Office of the Director of Public Prosecutions Prosecution Guidelines, Ch 13; Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 87, 91; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 29.5, 29.8. In R v Lipton, the police were obliged to provide material to the DPP who had to form a view as to whether the material was relevant and, where relevant, advise the offender of any claim for public interest immunity which would be determined by a court. Sections 15A(6) and (7) Director of Public Prosecutions Act 1986 provide that police are not required to disclose material subject to privilege, public interest immunity or statutory immunity unless requested by the DPP: ss 15A(6)–(9). If such a request is made it “must” be provided: ss 15A(7).

[1-210] The defence

There are papers by Public Defenders (past and present) which articulate the role and obligations of the defence lawyer at sentence notably:

The proscription of quantified sentencing range submissions under Barbaro v The Queen does not apply to defence counsel; a plea in mitigation would be significantly compromised if the defence was prevented from making such submissions: Matthews, Vu and Hashmi v The Queen [2014] VSCA 291 at [22], [24].

It is the duty of defence representatives to raise matters in their clients’ favour: Toole v R [2014] NSWCCA 318 at [44]. Defence counsel should consider, and bring to the court’s attention, any alternative sentencing options which might reasonably be available in the circumstances of an individual case: EF v R [2015] NSWCCA 36 at [13], [58]. A failure to do so “may be the cause of injustice”: EF v R per Simpson J at [13].

Defence practitioners have an obligation, unless circumstances warrant otherwise in the practitioner’s considered opinion, to advise a client of matters that reduce penalty. Rules r 39–41 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 address criminal pleas. It is the duty of the barrister to advise the client generally about any plea to the charge: r 39(a). The barrister may, in an appropriate case, advise the client that a guilty plea is generally regarded by a court as a mitigating factor: r 40.

[1-220] Duty of legal practitioners to assist sentencing judge

There is a fundamental obligation on legal practitioners appearing in sentence proceedings to assist the sentencing judge. All practitioners must ensure the judge is not led into error by the provision of incorrect information: Haines v R [2021] NSWCCA 149 at [66]–[67]; McGovern aka Lanesbury v R [2021] NSWCCA 176 at [76]–[78]. They must be astute to correct misstatements by judges when they occur. If a judge misstates the maximum penalty whilst giving reasons in open court, it is the duty of the practitioners appearing to correct the error immediately even if it involves interrupting the judge to draw his or her attention to the matter. If not done immediately, it should be done before the proceedings conclude and preferably before sentence is passed: Campbell v R [2018] NSWCCA 17 at [34]; Kandemir v R [2018] NSWCCA 154 at [71].