A decision today by the High Court of Australia will significantly change sentencing practices in Victoria. It may also affect the conduct of future plea negotiations.
In Pasquale Barbaro v The Queen and Saverio Zirilli v The Queen, the High Court upheld a decision by the Victorian Court of Appeal rejecting the argument of Mr Barbaro and Mr Zirilli (the applicants) that they had suffered procedural unfairness at their sentencing. The applicants argued that the sentencing judge should have sought a submission from the prosecution about what range of sentences would be appropriate.
The High Court's decision not only rejected the application, but it overruled a 2008 decision by the Victorian Court of Appeal (R v MacNeil-Brown) that had found that if a sentencing judge asked, the prosecution had to submit what it considered to be an appropriate sentencing range for the case. The High Court today ruled that this practice is wrong in principle and should cease saying that the practice was effectively requiring the prosecution to act as 'a surrogate judge'.
Following an extensive police investigation in 2007 that led to the seizure of over 15 million ecstasy tablets and nearly 100 kg of cocaine, the applicants were each charged with three serious drug offences including trafficking in a commercial quantity of drugs. The prosecution secured guilty pleas following discussions that included an indication of the prosecution's sentencing range. However, the trial judge did not ask either the defence or the prosecution for a sentencing range, and both applicants received jail terms longer than anticipated. These sentences were appealed to the Victorian Court of Appeal. The court rejected these appeals. Special leave was sought and granted to appeal to the High Court of Australia.
The High Court commented that if prosecution and defence provide the sentencing judge with their submissions about relevant sentencing principles and cases, the judge would have no need for submissions about sentencing range. Importantly, the High Court’s decision does not restrict courts' 'proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases'.
