Wednesday, February 12, 2014

Stop the tendering for sentence!

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.