2.Appeal treated as instituted, heard instanter and dismissed.
Matter No M1/2013
1.Special leave to appeal granted.
2.Appeal treated as instituted, heard instanter and dismissed.
On appeal from the Supreme Court of Victoria
Representation
S J Odgers SC with T Kassimatis for the applicant in M3/2013 (instructed by Theo Magazis & Associates)
B G Walmsley SC with F H Todd for the applicant in M1/2013 (instructed by Acquaro & Co)
R J Bromwich SC with B M Young SC for the respondent in both matters (instructed by Director of Public Prosecutions (Cth))
G J C Silbert SC with B L Sonnet for the Director of Public Prosecutions (Victoria), intervening in both matters (instructed by Solicitor for Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Barbaro v The Queen Zirilli v The Queen
Criminal law – Sentence – Principles – Applicants pleaded guilty to offences against laws of Commonwealth after prosecution expressed views about available range of sentences that could be imposed on each applicant – Sentencing judge refused to receive submission from prosecution about available range of sentences – Whether duty of prosecution to make submission as to available range of sentences – Whether submission as to range amounts to submission of law – Whether failure to receive prosecution submission as to range procedurally unfair – Whether failure to receive prosecution submission as to range failure to take account of relevant consideration.
Words and phrases – "available range of sentences", "submission of law".
FRENCH CJ, HAYNE, KIEFEL AND BELL JJ. Each applicant pleaded guilty in the Supreme Court of Victoria to serious offences against laws of the Commonwealth. Each was sentenced to a very lengthy term of imprisonment: Mr Barbaro to life imprisonment with a non‑parole period of 30 years, Mr Zirilli to 26 years' imprisonment with a non‑parole period of 18 years.
Each seeks special leave to appeal to this Court to allege that the sentencing hearing was procedurally unfair and that the sentencing judge failed to take into account a relevant consideration. The applications were referred for argument, as on an appeal, before an enlarged Bench. The applications were heard together. Each application for special leave to appeal should be granted but each appeal dismissed.
The applicants' arguments
The applicants submitted that the sentencing hearing was unfair because the sentencing judge (King J) said at the outset that she did not seek, and would not receive, any submission from the prosecution about what range of sentences she could impose upon each applicant. The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Barbaro v The Queen [2014] HCA 2
Case
[2014] HCA 2
Decision Date
CaseChat Overview and Summary
In *Barbaro v The Queen*, the applicants, Pasquale Barbaro and Saverio Zirilli, appealed to the High Court of Australia after pleading guilty to federal offences. The central dispute concerned the sentencing judge's refusal to receive submissions from the prosecution regarding the available range of sentences that could be imposed. The applicants argued that this refusal was procedurally unfair and amounted to a failure to consider a relevant factor in sentencing.
The High Court was required to determine whether a sentencing judge is obliged to receive and consider submissions from the prosecution concerning the available range of sentences for a federal offence. Further, the Court had to consider whether such a submission constitutes a submission of law, and if its exclusion amounts to a denial of procedural fairness or a failure to take into account a relevant consideration under section 16A of the *Crimes Act 1914* (Cth).
The Court reasoned that a submission by the prosecution about the bounds of the available sentencing range is merely an opinion and not a submission of law. Consequently, a sentencing judge is not required, and indeed should not, take such an opinion into account when fixing sentences. The Court affirmed that sentencing discretion must be exercised judicially, according to rules of reason and justice, and that section 16A of the *Crimes Act* requires the imposition of a sentence appropriate to the circumstances of the offence. The Court concluded that the applicants were not denied procedural fairness and that no relevant consideration was ignored by the sentencing judge.
Special leave to appeal was granted in both matters, but the appeals were treated as instituted, heard instanter, and ultimately dismissed.
Orders
Orders of the court
Matter No M3/2013
1. Special leave to appeal granted.
2. Appeal treated as instituted, heard instanter and dismissed.
Matter No M1/2013
1. Special leave to appeal granted.
2. Appeal treated as instituted, heard instanter and dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, KIEFEL AND BELL JJ
GAGELER J
The applicants' arguments that the sentencing judge ignored a relevant consideration in sentencing the applicants must also be rejected. Once it is understood that a submission by the prosecution about the bounds of the available range of sentences is no more than a statement of opinion, it follows that the sentencing judge need not, and should not, take it into account in fixing the sentences to be imposed. Conclusion and orders The applicants were not denied procedural fairness because the sentencing judge would not receive statements of what the prosecution considered to be the bounds of the available sentencing ranges. Not receiving such a statement was not a failure to take account of some material consideration. The applicants demonstrate no other form of unfairness in the sentencing hearings. Each application for special leave should be granted, each appeal treated as instituted and heard instanter but dismissed. Section 16A(1) of the Crimes Act 1914 (Cth) ("the Act") requires a court sentencing a person for a federal offence to "impose a sentence ... that is of a severity appropriate in all the circumstances of the offence". That statutory language reflects the "basic principle of sentencing law" that a sentence "should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances"[35]. The statutory language, in so doing, makes plain that the sentence to be imposed by the court need not be a sentence which is uniquely correct. The range of sentences capable of being characterised as of a severity appropriate in all the circumstances of a particular offence is set by the time-honoured requirement implicit in the section that sentencing discretion "must be exercised judicially, according to rules of reason and justice"[36]. [35]Hoare v The Queen (1989) 167 CLR 348 at 354; [1989] HCA 33 (emphasis in original).[36]House v The King (1936) 55 CLR 499 at 503; [1936] HCA 40; Cranssen v The King (1936) 55 CLR 509 at 513; [1936] HCA 42. Section 16A(2) of the Act goes on to require the court sentencing a person for a federal offence to take into account such matters specified in that section "as are relevant and known to the court". By s 16A(2)(g), those specified matters relevantly include "if the person has pleaded guilty to the charge in respect of the offence – that fact". The introduction to s 16A(2) makes plain, however, that the specified matters required to be taken into account are "[i]n addition to any other matters". The implicit contemplation of that statutory language is that other matters might be required to be taken into account, either by another statute or by the common law[37].[37]Director of Public Prosecutions (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 378. Cf Hiliv The Queen (2010) 242 CLR 520 at 528 [25]; [2010] HCA 45; Johnson v The Queen (2004) 78 ALJR 616 at 622 [15]; 205 ALR 346 at 353; [2004] HCA 15. Although not explicitly so framed, the argument on behalf of the applicant Saverio Zirilli necessarily turns on establishing that the common law requires a court exercising the sentencing discretion conferred by s 16A(1) of the Act to take into account a prosecution submission as to the range of sentences capable of being characterised as of a severity appropriate in all the circumstances of a particular offence if that prosecution submission has been foreshadowed to the person and taken into account by the person in deciding to plead guilty to the offence. The argument on behalf of the applicant Pasquale Barbaro has the additional strand that a refusal by a court to entertain a prosecution submission in those circumstances can also constitute a denial of procedural fairness.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, KIEFEL AND BELL JJ,
GAGELER J