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].

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

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 Barristers’ Rules 2014: r  93(c) and the Solicitors’ Rules 2013: r 29.12.3.

The Director of Public Prosecutions issues Prosecution Guidelines under s 13 Director of Public Prosecutions Act 1986. Guideline 28 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 28 [Sentence] [Furnished 20 October 2003; amended 1 June 2007]

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

The starting point for a consideration of its role is Barristers’ Rule 71 and Solicitors’ Rule A71 (see Appendix B) which provide:

A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude, but:

(a) 

must correct any error made by the opponent in address on sentence;

(b) 

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

(c) 

must assist the court to avoid appealable error on the issue of sentence;

(d) 

may submit that a custodial or non-custodial sentence is appropriate; and

(e) 

may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority.

In pursuing this last requirement, a prosecutor should:

  • adequately present the facts;

  • ensure that the court is not proceeding upon any error of law or fact;

  • provide assistance on the facts or law as required;

  • fairly test the opposing case as required;

  • refer to relevant official statistics and comparable cases and the sentencing options available;

  • if it appears there is a real possibility that the court may make a sentencing order that would be inappropriate and not within a proper exercise of the sentencing discretion, make submissions on that issue — particularly if, where a custodial sentence is appropriate, the court is contemplating a non-custodial penalty.

It is a judicial officer’s duty to find and apply the law and that responsibility is not circumscribed by the conduct of legal representatives. Any understanding between the prosecution and defence as to submissions that will be made on sentence does not bind the judge or magistrate.

A prosecutor should not in any way fetter the discretion of the Director to appeal against the inadequacy of a sentence (including by informing the court or an opponent whether or not the Director would, or would be likely to, appeal, or whether or not a sentence imposed is regarded as appropriate and adequate). The Director’s instructions may be sought in advance in exceptional cases.

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 (set out in the Prosecution Guidelines: Guideline 28; Solicitors’ Rules 2013, r 29.5 and Barristers Rules 2014, r 86) extends to disclosing material relevant to sentence proceedings: R v Lipton (2011) 82 NSWLR 123 at [82]. 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. Section 15A(6) Director of Public Prosecutions Act 1986 was inserted on 25 November 2011 to overcome the decision in R v Lipton, has since been amended by the Director of Public Prosecutions Amendment (Disclosures) Act 2012. With effect from 1 January 2013, ss 15A(6) and (7) were substituted to 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) 247 A Crim R 272 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 correct error by sentencing judge

Legal practitioners appearing in sentencing proceedings 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].