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Watershed rulings or storm in a teacup?

Feature Articles

Cite as: July 2014 88 (07) LIJ, p.54

A recent High Court decision reaffirms the principle that courts, not prosecution counsel, must determine appropriate sentences. The implications of this for plea agreements are more benign than some have feared. 

By Roland Müller

In Barbaro v R; Zirilli v R1 (Barbaro) the High Court reinforced the roles of the prosecution and the court in the sentencing process. While counsel for the prosecution is duty bound to inform the court of current sentencing practices, comparable cases, relevant sentencing principles and to make submissions as to the facts that ought to be found,2 it is for the sentencing court alone to synthesise the information to determine the appropriate sentence.

In Barbaro, it was held to be neither the role nor the duty of the prosecution to make a submission proposing the appropriate sentencing range. Reactions to the decision included concerns that if the prosecution is precluded from so doing, this will remove an incentive for an accused to enter a plea agreement, to the extent to which such an agreement may include agreement on the prosecution submission as to the appropriate sentence. Rather than the decision being a watershed in the negotiation of plea agreements, the reactions are more aptly described as a storm in a teacup.

Barbaro

The proceedings were two applications for special leave and concurrently heard appeals from a decision of the Victorian Court of Appeal.3

The appeals to the High Court might be described as speculative. They were based upon a practically inconsequential matter of form, concerning sentences not described as manifestly excessive and which were highly unlikely to be affected by the outcome of the appeal. The appellants had entered into plea agreements on the understanding that prosecution submissions identifying a particular range of appropriate sentences would be made. Each appellant argued that the Court of Appeal had erred in holding that no procedural unfairness arose at the plea hearing as a consequence of the sentencing judge’s refusal to receive or have regard to a submission from the prosecution on the range of available sentences (sentences said to be neither manifestly inadequate nor manifestly excessive). They asserted that, consequently, the sentencing judge had failed or refused to take into account a relevant consideration and the sentence may have been different had the prosecutor been permitted to make and explain a submission on the available range. Leave to appeal was granted and each appeal dismissed.

MacNeil-Brown

Of significance were the remarks of the plurality in Barbaro at [22] to [23], in respect of R v MacNeil-Brown; R v Piggot4 (MacNeil-Brown), an earlier decision of the Court of Appeal.

In the years prior to the decision in MacNeil-Brown there had been variation amongst cases, particularly in the intermediate courts in Victoria, as to whether the prosecution would make a submission on the range of appropriate sentences. While the practitioner appearing for the accused would routinely and often enthusiastically make such a submission, the prosecution would infrequently have instructions to do so. In some instances, this would lead to uncomfortable exchanges between the bench and prosecution counsel, occasionally resulting in the latter being chastised for their “unhelpful” position.5

The decision in MacNeil-Brown resolved the ambiguity. It required the prosecution to be in a position to make submissions on the available sentencing range based upon comparable cases if requested (whether or not in response to any range proposed on behalf of the accused) or if required to prevent the court from falling into appealable error. Such “MacNeil-Brown range” included a submission in terms of a numerical range within which the prosecution submitted the sentence would appropriately fall.

In Barbaro, the plurality held6 that, to the extent that MacNeil-Brown is authority for the prosecution to provide a submission about the available sentencing range, the decision should be overruled and the practice of courts requiring such a submission should cease.

Reactions to Barbaro

The Court of Appeal promptly confirmed that Barbaro precludes the provision of MacNeil-Brown ranges by the prosecution.7 Barbaro has not been interpreted as precluding prosecution counsel from making submissions on whether a court would fall into appealable error if it were to sentence in accordance with submissions on sentence proffered by defence counsel.8 The Victorian DPP John Champion SC described the decision in Barbaro as significant and authoritative.9 The Sentencing Advisory Council commented that the decision would significantly change sentencing practices in Victoria and may affect the conduct of future plea negotiations.10 Some practitioners (and in passing, the media) speculated as to whether Barbaro would reduce certainty and reduce the attraction of plea agreements.

Ancillary questions regarding the scope of the decision have also arisen. For example, whether it is appropriate or permissible for defence counsel to make submissions on sentencing ranges was not specifically addressed in Barbaro,11 although the submission of a MacNeil-Brown range on behalf of the accused can hardly be more appropriate than one submitted by the prosecution. Barbaro also did not address whether the Crown may (or should) make submissions as to the type of sentence, such as whether a community correction order or immediate custodial sentence is appropriate; however, this is a matter for the court to determine, having regard to comparable cases, the circumstances of the offending and the offender’s personal circumstances. There may also be implications for courts considering civil pecuniary penalties.12

Also, while nothing in Barbaro suggested precluding the use of (and submissions regarding) sentencing statistics, the theme of preferring consistent application of principle over numerical equivalence in sentencing outcomes13 in Barbaro was promptly adopted by the Victorian and New South Wales Courts of Appeal.14

Plea Agreements

Plea agreements involve an accused’s consent to plead guilty to one or more charges on terms agreed with the prosecution. The opportunity to negotiate pleas works alongside other “incentives”, such as offenders routinely receiving some reduction in sentence in recognition of a plea of guilty, other than in an exceptional case.15

Prior to the Victorian DPP’s October 2012 policy on the Crown’s role in plea and sentence, which narrowed the scope for disclosure of the Victorian DPP’s position on sentencing range during the negotiation of a plea agreement, representations by the prosecution regarding the proposed sentencing range were often given substantial prominence in plea negotiations.16 The perceived significance of an agreed range resulted from it being a quantifiable factor – a “bottom line” of sorts – giving the accused a modicum of certainty about one aspect of the sentencing process.

Such significance and perceived certainty may have been overemphasised, if not wholly misconceived. In the writer’s respectful view, it should always have been understood by (and incumbent upon the legal practitioners involved to advise) an accused that, irrespective of the level of confidence an accused may have had in the weight to be given to the prosecution’s opinion, the court’s sentencing discretion was not confined to the stated range.17 Put another way, no properly advised accused should have considered the prosecution’s range as an important factor in deciding whether to enter into a plea agreement. Accordingly, concerns that the abolition of the practice of submitting MacNeil-Brown ranges will deter a properly advised offender from entering into a plea agreement lack foundation.

While indicative of sentencing practices and providing a basis upon which to examine whether a proposed sentence was appropriate, a MacNeil-Brown range never delimited a court’s sentencing discretion in a particular case.18 Any attempt to require the prosecution to emphasise unduly the lower end of the range would have been contrary to the prosecutor’s primary duty to the court.

It is more useful for the respective lawyers to consider how the instant offending compares to the worst possible example of offending covered by the relevant charge(s), with which other cases (if any) it may be comparable and how (taking into account mitigating and aggravating factors) it is likely to be dealt with in accordance with current sentencing practices. Such analysis encourages a considered assessment of the likely sentence and enables any plea agreement to be evaluated properly. It contemporaneously equips the respective practitioners with the required material to assist the court if necessary. While the practitioners may incidentally form a view as to the likely range of available sentences, the focus should be upon understanding how the sentencing considerations applicable to the offence will be dealt with and how the circumstances may affect the sentencing outcome.

The decision in Barbaro properly returns the focus of submissions to sentencing principles and comparable cases rather than the distillation of a numerical range.19 A flippant analogy is that the prosecution is permitted to “tell the joke but not the punchline”. The better analysis is that the prosecution’s duty is to inform the court of matters required to arrive at the appropriate sentence and to assist the court to avoid falling into appealable error, without supplanting the role of the court in synthesising the relevant information to determine the appropriate sentence.20 Material from which a well-founded MacNeil-Brown submission would previously have been discerned should be collated and can be submitted – but without a submission as to the numerical range of “available” sentences.21

Using Agreed Facts

In addition to a thorough understanding of current sentencing practices for a particular offence and of cases comparable to (and distinguishable from) the instant case, competent practitioners must understand in detail the factual basis for charges. Only then can they assess the relevance of comparable cases and the utility (if any) of sentencing statistics. Where the accused pleads guilty to an offence, this amounts to an admission of its elements; however, the prosecution summary routinely includes additional allegations said to form the factual substratum of each charge. The facts may be the subject of admissions, a contested plea or negotiation between the prosecution and the accused.

Particularly if negotiation resolves aspects of any dispute regarding the facts, the parties may produce a written statement of agreed facts to be provided to the court as (part or all of) the factual basis for sentencing. While a sentencing judge is not bound by a statement of agreed facts and may form a different view to that advanced by the parties, procedural fairness would require the judge to permit the parties to respond to the alternative view prior to imposing sentence.22 An accused must be given the opportunity to challenge the basis for an adverse finding, where that finding is contrary to an accepted fact.23 Unless admitted, facts beyond the scope of agreed facts must not be taken into account in a way that is adverse to the accused unless proved beyond reasonable doubt; matters in mitigation must be proved on the balance of probabilities.24 Either a joint statement of agreed facts or the Crown summary may form the basis of agreed matters. It would be unfair to make findings adverse to the accused or depart from agreed facts without giving defence counsel an opportunity to be heard, as it may disturb the basis upon which a plea of guilty was entered.25

Conclusion

Barbaro has reaffirmed the exclusive role of the court, seized of all relevant material, to distil an appropriate sentencing disposition. It is not for the prosecutor to attempt to do so or to submit a MacNeil-Brown range. Practitioners appearing for the prosecution (and for the accused) are still required to assist the court with submissions on the factual circumstances of the offending, current sentencing practices and comparable cases if necessary. Practitioners involved in plea negotiations should pay particular attention to the factual basis for the offending, which will in turn enable identification of comparable cases and assessment of the gravity of the alleged offending. This will inform decisions regarding plea agreements and the sentencing process generally




Roland Müller is a senior associate with Parke Lawyers and a National Mediator Accreditation Scheme mediator. He appears primarily in civil litigation, criminal law and contentious employment law proceedings.

1. (2014) 305 ALR 323.

2. Note 1 above at [36]-[39]; see also R v Flowers (unreported, Supreme Court of the ACT, Court of Appeal, no 13, 8 May 2014) at [45] per Ross J. The prosecutor remains duty bound to supply comparable cases: R v Ogden (unreported, Supreme Court of Queensland, Court of Appeal, no 89, 29 April 2014) at [7].

3. Barbaro v R; Zirilli v R (unreported, Court of Appeal, Supreme Court of Victoria, no 288, 30 November 2012); on appeal from Director of Public Prosecutions (Cth) v Barbaro & Zirilli (unreported, Supreme Court of Victoria, no 47, 23 February 2012).

4. (2008) 20 VR 677.

5. Compare Altun v R (unreported, Court of Appeal, Supreme Court of Victoria, no 46, 25 March 2014) at [12] per Coghlan JA, in which the contents of such submissions were considered inappropriate and unhelpful.

6. Note 1 above at [23].

7. Hibgame v R (unreported, Supreme Court of Victoria, Court of Appeal, no 26, 3 March 2014) at footnote 5, McPherson v R (unreported, Supreme Court of Victoria, Court of Appeal, no 59, 8 April 2014) at footnotes 1, 8; as did the Queensland Court of Appeal in R v AAR (unreported, Queensland Court of Appeal, no 20, 21 February 2014) at [40] and the New South Wales Supreme Court in R v Paton (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, no 71, 19 February 2014).

8. For example, R v Nesci (unreported, Supreme Court of Victoria, no 67, 6 March 2014).

9. Office of Public Prosecutions Victoria, “High Court clarifies prosecution role in sentencing hearings”, 13 February 2014: www.opp.vic.gov.au/News-and-Media/Media-releases/High-Court-Clarifies-Prosecution- Role-in-Sentencing.

10. Sentencing Advisory Council, “High Court Decision Will Change Victorian Sentencing Practices”, 12 February 2014: sentencingcouncil.vic.gov.au/news/ 2014-02-12/high-court-decision-will-change- victorian-sentencing-practices.

11. Amongst the first decisions to consider this was R v Costin (unreported, District Court of Queensland, no 38, 19 February 2014), in which Smith DCJ held that the defence should not submit as to a penalty range but may state a specific sentence for which it contends. In R v AAR [2014] QCA 20 (21 February 2014), the Queensland Court of Appeal referred to it being impermissible for the prosecutor “and perhaps also . . . defence counsel” (at [40]) to proffer a MacNeil-Brown range. See also Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (unreported, Supreme Court of Victoria, no 134, 31 March 2014) at [23].

12. ACCC v Energy Australia Pty Ltd (unreported, Federal Court of Australia, no 336, 4 April 2014) at [113]-[152]; ACCC v Mandurvit Pty Ltd (unreported, Federal Court of Australia, no 464, 12 May 2014) at [37]-[80]

13. Note 1 above at [40], but note the distinction between sentencing statistics based upon comparable cases and the expression of a numerical range of “available sentences”.

14. Simpson v R (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, no 23, 4 March 2014); Alavy v R (unreported, Supreme Court of Victoria, Court of Appeal, no 25, 3 March 2014) at footnote 3.

15. Phillips v R (2012) 222 A Crim R 149.

16. Director of Public Prosecutions (Victoria), Director’s Policy 9 – Crown’s Role on Plea and Sentence: www.opp.vic.gov.au/getattachment/27855e5d-fc4a-432f-a07d-18e0b402eeb7/9-Crown-s-Role-of-Plea-and-Sentence.aspx, 2 October 2012, 14-18 [67]-[79]. Note that this applied only to state charges and not to Commonwealth charges prosecuted in Victoria by the Commonwealth DPP.

17. Talbot v R; Dux v R (unreported, Supreme Court of Victoria, Court of Appeal, no 118, 8 June 2012) at [46]-[48].

18. Note 1 above at [41]; Hili v R (2010) 242 CLR 520; R v Mulvihill (Supreme Court of NSW, no 443, 16 April 2014) at [100]-[101] (Mulvihill); Chegeni Najad v Bruhn (unreported, Supreme Court of Western Australia, no 73, 11 March 2014) at [51]; The State of Western Australia v Legge (unreported, Supreme Court of Western Australia, Court of Appeal, no 47, 28 February 2014).

19. See for example R v QF (unreported, Supreme Court of Victoria, no 81, 11 March 2014) at [39].

20. Note 1 at [39]-[40]; DPP v Holder (unreported, Supreme Court of Victoria, Court of Appeal, no 61, 8 April 2014) at [34]; Bala v R (unreported, Supreme Court of Victoria, Court of Appeal, no 78, 16 April 2010) at [6]-[7] per Maxwell P, with whom Coghlan AJA agreed; Judicial College of Victoria, “Prosecuting counsel”, in Sentencing Manual, 13 February 2014: www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm #14245.html.

21. E.g. schedules of comparable cases: Mulvihill at [100], note 18 above.

22. Scott v R (unreported, Supreme Court of Victoria, Court of Appeal, no 290, 29 October 2010) at [48].

23. S D v R (unreported, Supreme Court of Victoria, Court of Appeal, no 133, 3 June 2013) at [45]-[49].

24. R v Olbrich (1999) 199 CLR 270, approving R v Storey (1998) 1 VR 359 at 369.

25. Ristevski v R (2011) 31 VR 19.

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