The High Court has held, by majority, that the practice in Victoria of permitting or requiring counsel for the prosecution, in certain circumstances, to make a submission as to the available range of sentences for an offence is wrong in principle. That practice should cease.
In DPP (Cth) v Barbaro & Zirilli [2012] VSC 47 Barbaro and Zirilli each pleaded guilty in the Supreme Court of Victoria to conspiring to traffic a commercial quantity of MDMA ($10m plus), trafficking a commercial quantity of that drug, money laundering ($5.6m) and attempting to possess a commercial quantity of cocaine ($40m).
They agreed to enter pleas of guilty in relation to those offences following discussions between their lawyers and the prosecution. During those discussions the prosecution expressed its view as to the range of sentences that might be imposed on each applicant, i.e. the soft end of 'plea bargaining'. Investigation (Operation Inca, Zanella, Cardinia and Bootham-Moko) had resulted in litigation involving 31 defendants, over 600 witnesses and many thousands of telephone intercepts, and seizure of 4.4 tonnes of Ecstasy tablets (with an estimated wholesale value of $122m) concealed in a shipment of tinned tomatoes.
The Court of Appeal of the Supreme Court of Victoria had held in R v MacNeil-Brown (2008) 20 VR 677 that if a sentencing judge asked, the prosecution was bound to submit what the prosecution considered to be the available range of sentences that could be imposed on an offender.
At the applicants' sentencing hearing, the sentencing judge made it plain that she did not intend to ask any party for submissions about sentencing range. The prosecution accordingly made no submission about what range of sentences could be imposed. Barbaro was sentenced to life imprisonment with a non-parole period of 30 years. Zirilli was sentenced to 26 years' imprisonment with a non-parole period of 18 years.
The applicants sought to challenge their sentences in the Court of Appeal on the basis (among others) that it was procedurally unfair for the sentencing judge to have refused to hear a submission from the prosecution on the available range of sentences in light of the discussions between the applicants and the prosecution. In Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288 the Court of Appeal rejected this challenge to the sentences. By special leave, the applicants appealed to the High Court, which has now dismissed the appeals.
It held that the prosecution has neither the role nor duty to proffer some statement of the bounds within which a sentence may be imposed. The sentencing judge alone decides what sentence will be imposed.
Practice which resulted from MacNeil-Brown was accordingly wrong in principle and should cease.
The Court held that because the prosecution's submission as to an available sentencing range is no more than a statement of opinion, it was not unfair for the sentencing judge to have refused to receive such a submission. The Court also held that this refusal did not amount to a failure to take into account a relevant consideration in sentencing the applicants.
It commented [at 47] -
To describe the discussions between the prosecution and lawyers for the applicants as leading to plea agreements (or “settlement” of the matters) cannot obscure three fundamental propositions. First, it is for the prosecution, alone, to decide what charges are to be preferred against an accused person. Second, it is for the accused person, alone, to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender’s advisers can do anything more than proffer an opinion as to what might reasonably be expected to happen. Third, and of most immediate importance in these applications, it is for the sentencing judge, alone, to decide what sentence will be imposed.
The applicants’ allegations of unfairness depended upon giving the plea agreements and the prosecution’s expression of opinion about sentencing range relevance and importance that is not consistent with these principles. The prosecution decided what charges would be preferred against the applicants. The applicants decided whether to plead guilty to those charges. They did so in light of whatever advice they had from their own advisers and whatever weight they chose to give to the prosecution’s opinions. But they necessarily did so knowing that it was for the judge, alone, to decide what sentence would be passed upon them
