Overruling an
established sentencing practice, the High Court of Australia held that, at
sentencing, the prosecutor should not make submissions on the appropriate range
of sentences available to the court: Barbaro
v The Queen; Zirilli v The Queen [2014] HCA 2
(12 February 2014).
The majority
(French CJ, Hayne, Kiefel and Bell JJ) held that it is wrong in principle for
the prosecution to do so. An error in sentencing can be identified without the
need to ascertain an appropriate range [27] – [28], and it is not the role of
the prosecutor to act as a surrogate judge and offer a dispassionate assessment
of such a supposed range [29]. A statement of an appropriate range depends on
assumptions which are likely to be unascertainable by the sentencing judge and
therefore of little use [37].
Instead, the
role of the prosecutor can be discerned from the correct procedure:
“[38]
If a sentencing judge is properly informed about the parties' submissions about
what facts should be found, the relevant sentencing principles and comparable
sentences, the judge 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 ... .”
[39]
... the role and duty of the prosecution remains the duty ... 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. It is neither the role nor the duty of the
prosecution to proffer some statement of the specific result which counsel then
appearing for the prosecution (or the Director of Public Prosecutions or the
Office of Public Prosecutions) considers should be reached or a statement of
the bounds within which that result should fall.”
Consistency
in the application of relevant principles is needed, not numerical equivalence
with sentences imposed in other cases [40] – [41], citing Hili v The Queen [2010] HCA 45, discussed here
on 10 December 2010 (and note the criticism of the approach in R v AM,
mentioned in that discussion, a case now available online so there is the link).
The majority
reasoning in Barbero includes the
proposition that a statement of the appropriate bounds for a sentence is a
statement of opinion, not of law; this is not convincing, and it did not
persuade Gageler J who agreed in the result of these appeals but dissented in
the reasoning. Undoubtedly true, however, is the majority’s assertion that plea
negotiations are irrelevant to sentencing: it is for the prosecutor to decide
on the charge, for the defendant to decide how to plead, and for the judge to
decide on the sentence [46] – [47].
In addition
to stopping the rather unpleasant bidding-for-sentence that can occur at
sentencing hearings, where the judge will seem to be either favouring the
prosecutor or ducking the issue by taking a middle line between the competing
offers, this case implicitly raises questions about the appropriateness of
guideline judgments.
