Barbaro v The Queen; Zirilli v The Queen

[2013] HCATrans 296

[2013] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M3 of 2013

B e t w e e n -

PASQUALE BARBARO

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne   No M1 of 2013

B e t w e e n -

SAVERIO ZIRILLI

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 NOVEMBER 2013, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant, Barbaro, with my learned friend, MR T. KASSIMATIS.  (instructed by Theo Magazis & Associates)

MR B.G. WALMSLEY, SC:   May it please your Honours, I appear on behalf of the applicant, Zirilli, with my learned friend, MS F.H. TODD.  (instructed by Acquaro & Co)

MR R.J. BROMWICH, SC:   May it please the Court, I appear for the respondent in both matters with my learned friend, MR B.M. YOUNG, SC.  (instructed by Director of Public Prosecutions (Cth))

MR G.J.C. SILBERT, SC:   May it please the Court, I seek leave to appear with my learned friend, MR B.L. SONNET, on behalf of the Director of Public Prosecutions of Victoria in relation to both matters seeking leave to intervene.  (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ:   You have leave to intervene in both matters.  Yes, Mr Odgers.

MR ODGERS:   Your Honours, this case is about negotiated pleas of guilty where, as part of the negotiations, the Director of Public Prosecutions, through his representatives, informs the accused of the Crown position regarding the appropriate sentencing range and the accused then pleads guilty.  In those circumstances, principles of fairness as well as considerations of policy indicate that the offender must be entitled to have that Crown position taken into account and given serious consideration by the sentencing court.

HAYNE J:   You seek to reopen the decision in GAS?

MR ODGERS:   No, your Honour.  We do not understand GAS to be contrary to what I have just put but of course I will come to GAS in due course.  What I propose to do, your Honours, initially, is to just take your Honours through the sequence of events in the sentencing proceedings because there is some difference of view as to what precisely happened in those proceedings.  The purpose of the exercise is to show that the judge made it very clear, on numerous occasions, that counsel for the applicant was not permitted to inform her Honour of the Crown sentencing range which had been disclosed during plea negotiations and that if it was drawn to her attention she would disregard it and to establish that counsel for the applicant accepted the direction of her Honour and did not make submissions about the Crown sentencing range.

I begin at page 64 of the application book.  Very early in the sentencing proceedings at line 20 her Honour referred to material from Mr Barbaro and Mr Zirilli.  That was the material which ultimately became exhibit 5 which included the correspondence between the DPP and the applicants’ legal representatives.  At that point Mr Young who appeared for the Crown indicated that there was no need for any of the deponents to be cross‑examined and he did not indicate that he had any problem, any objection to any of the material there, but I will come back to that in due course.  Her Honour then at the top of 65 says:

but the point is it contains their discussions and dealings between the Crown and the defence . . . 

HER HONOUR:   Letters, correspondence . . . 

HER HONOUR:   And it seems to contain with it some sort of discussion about sentencing and years I mentioned, can I make it clear that I do not seek and will not seek any indication of sentencing range from anyone . . . 

HER HONOUR:   I don’t consider it appropriate.

Then if I can take you down to line 25, and this is really the nub of the appeal, or the application -

Can I say I will not take them into account.  I will presume they’ve not been given.  I did not ask for them and unless I ask for them, there is no basis for you to put them before me . . . 

HER HONOUR:   Right, and I want to everyone to understand I will not in any way be looking at the McNeill Brown figures that have been put forward.

So if I could just stop there, your Honours, the sentencing judge made it clear that she not only did not want figures from the Crown as to an appropriate sentencing range but because she had not asked for them there was no basis to put them before her, that is, they were not to be put before her and she would not be looking at the ones that had been put forward.  She would not take them into account.  Then, because it is relevant to an argument advanced by my opponent, if I can take you to page 123, at line 14 - this is during a submission made on behalf of Mr Barbaro by his counsel and your Honours will see at line 14, Mr Dunn says at one point:

I understand Your Honour’s reluctance to talk about the Crown range, but if I was to pick a figure out of the air –

and goes on.  That statement was relied on in the Court of Appeal, and we say wrongly, as some kind of acceptance or agreement or willingness on the part of Mr Dunn making a decision not to seek to have the Crown range put before her Honour – essentially showed that he chose not to.  But that proposition is removed, or can be shown to be wrong, at pages 174 to 175 of the appeal book. 

I should, just before I come to that, mention that the relevant letters from the DPP which were referred to earlier, were admitted as exhibit 5 at, I think, page 110 of the appeal book.  Yes, page 110.  They were admitted without objection from the Crown as a tender bundle.  They contained the relevant letters.  So at 174 Mr Dunn refers to that material and says at line 27:

there’s a written offer in June and the set‑up in very simple terms of that was there were plea discussions between the parties where people got together and had a cup of tea and said “Look, can we resolve this?”

And then what happened is there’s plea offers, writings, letters, and Your Honour the purpose of putting before Your Honour the letter and the bundle was so that there are two letters, there’s the October letter which sets out the history, and the November letter which tells you how the matter was settled –

Now, let me stop there because obviously it is important to know what those letters said.  I will come back to this part of the transcript after I take your Honours to the letters.  They are found at appeal books 53 and thereafter.

HAYNE J:   What page?

MR ODGERS:   Appeal book 53, your Honour.  This is a letter of 10 October 2011.  Your Honours will see in the third full paragraph it reads:

Because of the impression conveyed by your letter received on 5 October 2011 it is appropriate to set out the history of plea negotiations between the parties ‑ ‑ ‑

FRENCH CJ:   I know that I am, perhaps, going forward a bit, but to what legal issue was this letter relevant in terms of her Honour’s function?

MR ODGERS:   The relevance of it was, from the point of view of the applicant, to put before her Honour two things:  one, the factual basis upon which the plea was entered, the factual basis, but I will put that to one side.

HAYNE J:   What does that mean?

MR ODGERS:   The facts, the agreed facts for the purposes of sentencing.  That is not part of this letter but it is certainly part of the next letter, I am sorry.  It is the following letter which contains all of the factual basis upon which the Crown advanced its case and which was agreed to by the applicant.  But, importantly, for the purposes of this application, there is no doubt that the applicant put it before the judge in order to inform the judge of the range of sentence which the Crown regarded as appropriate and had disclosed as being the Crown’s view of the appropriate sentencing range in those plea negotiations.

HAYNE J:   What was the relevance of that to any issue or question that the judge had to determine?

MR ODGERS:   It was relevant for two reasons:  one, it influenced the decision of the applicant to plead guilty ‑ ‑ ‑

HAYNE J:   Again, there is no question of the applicant seeking to withdraw his plea on account of being misled.  The plea was entered as his conscious decision, was it not?

MR ODGERS:   Yes.

HAYNE J:   So what is the relevance of the fact that he had this information before he pleaded?

MR ODGERS:   We say as a matter of fairness and policy, if it was a relevant factor or incentive in him deciding to plead guilty then he is entitled, as a matter of fairness and policy, to have the sentencing court informed of that Crown submission.  I mean by Crown submission ‑ ‑ ‑

HAYNE J:   That proposition is no more than “I should win the appeal”, Mr Odgers.  At some point, you are going to have to amplify it, are you not?

MR ODGERS:   I will.

BELL J:   Will you explain the policy?

MR ODGERS:   There is a policy in encouraging guilty people to plead guilty.  That is one reason why, in New South Wales, there are discounts ‑ ‑ ‑

FRENCH CJ:   Well, that is reflected in discounts for early pleas.

MR ODGERS:   Exactly.  That is a well‑established ‑ ‑ ‑

FRENCH CJ:   That does not depend on anything that goes on, as it were, behind chambers doors.

MR ODGERS:   No, but what I am doing is taking that proposition and saying that around the world it is recognised that a factor which will be potentially very influential in whether or not a person pleads guilty is their anticipation of the kind of sentence that they are likely to get.  That is one reason why in the United States they combine the judge ‑ ‑ ‑

FRENCH CJ:   Well, is not your proposition this, that the plea of guilty has been entered in part based upon an incentive, the incentive being that the Crown will contend for a range not greater than X years?

MR ODGERS:   Yes, I was going to say that.

FRENCH CJ:   Now, the question then is what is the relevance of that – the existence of that incentive to the judge’s function?

MR ODGERS:   The judge, as in Canada, should, in order to facilitate or to contribute to a system designed to encourage ‑ ‑ ‑

FRENCH CJ:   The judge should join the team?

MR ODGERS:   Perhaps that is what I am saying, your Honour.  The Canadian courts have said as much that where there are agreements between the Crown and the prosecution and the defence as to an appropriate sentencing range and that is brought to the attention of the judge – of course the judge is not bound, everybody accepts that in Canada, it is different in the United States – nonetheless, the judge should give serious consideration to that range, and as I say, the Canadian courts see that as a perfectly reasonable approach.

KIEFEL J:   Does the process of the plea discussion, on your submission, give rise to some kind of legitimate expectation on the part of ‑ ‑ ‑

MR ODGERS:   Yes, I would say that.

KIEFEL J:   Well, what is the legitimate expectation?  Is it that the prosecution will not speak against the basis of the bargain or is it one that catches the court somehow?

MR ODGERS:   I think in point 3 of the outline I have suggested various ways in which it could be understood.

KIEFEL J:   That is directed to the prosecutor.

MR ODGERS:   No, but (c)  is the one that your Honour is referring to.

KIEFEL J:   So it is a legitimate expectation about the procedure before the court which would bind the prosecutor in a negative way.

MR ODGERS:   Correct.  Yes.

KIEFEL J:   That is about as far as you can take it, is it not?

MR ODGERS:   Yes.  That is as far as I need to take it, with respect, because in this case we are complaining about the fact that it was the applicant who wanted to inform the judge of what the Crown had said or disclosed as to its position about the appropriate sentencing range.  The Crown is to be taken to have agreed or committed that they would not object to that and they did not object to that and it was the judge who ‑ ‑ ‑

KIEFEL J:   You probably do not need something called the legitimate expectation.  The Crown would probably be bound in ethics, would it not?

MR ODGERS:   Exactly.  So perhaps that does not add anything to it.  We say that the Crown in fact had a duty – an ethical duty – to agree or not object to the defence putting that Crown range before the judge.

HAYNE J:   They did not, did they?

MR ODGERS:   No, they did not.

HAYNE J:   No.  So the proposition you enunciate is not engaged in this case?

MR ODGERS:   No, but I was asked to articulate ‑ ‑ ‑

HAYNE J:   I understand that but the propositions you do advance would require reconsideration of what was said in GAS 217 CLR at 210 to 211 in points 2 and 3, would it not?

MR ODGERS:   I have already submitted to your Honour that in my submission it would not, but I will come to that.  I am not sure I have answered the various questions that have been asked of me but perhaps if I move on.  I should just say, your Honours, that whatever the correct characterisation of what is happening in this case when the Crown discloses its position or when the applicant receives that correspondence, there was a reasonable expectation on his part that the judge would be informed as to the Crown’s position. 

We say that in the light of the authority in Victoria, MacNeil‑Brown, at the very least it was understood that if the Crown considered that the judge may be falling into error in sentencing then the Crown would of its own motion inform the judge of the range that it regarded as appropriate.  We say in this case that requirement was met because the judge at numerous occasions made it clear that she was contemplating a sentence of life which of course was outside the Crown’s view of what the appropriate range was.

BELL J:   What was the significance of the circumstance that the Crown Prosecutor holding brief considered the appropriate range was one short of life?  What is the relevance of that?  Either the judge imposed a sentence within the exercise of appropriate discretion, or she did not.  If she did not, there was an appellate avenue available.

MR ODGERS:   We say that at the very least a Crown position in those terms is something that a sentencing judge should give serious consideration to.  That means “I am not bound by it, but before I sentence to a significantly higher sentence, I should ask the Crown what are your reasons for that submission?”.  MacNeil-Brown in fact says that it is not just a case of providing a range; the Crown should actually go to the relevant principles and comparable cases and objective and subjective factors which, in the Crown’s submission, support a conclusion that it would be legal error to impose a sentence outside that range.  That is what Crowns are expected to do in Victoria ‑ ‑ ‑

BELL J:   In the event the judge asks, or the Crown has a basis for concern that the judge may, from indications given, impose a sentence that would involve appealable legal error.

MR ODGERS:   Yes, your Honour, but in response to your Honour’s question about how the judge should respond to such a submission from the Crown, assuming it was made, my answer is in the light – should give serious consideration to that submission from the Crown, consider the reasons that are advanced in support of it and, while not bound by it, as the Canadian courts have said, would need to have good reasons – perhaps that is putting it too high, but nonetheless, proper reasons for imposing a different sentence.

BELL J:   Does it flow from that that the judge is required in the reasons for sentence to explain why the judge has departed from the range proposed by the Crown?

MR ODGERS:   I would go so far as to say that that would be appropriate.  I should also say that as a matter of procedural fairness, once the Crown has been informed of the Crown range and the reasons that are advanced in support of it, the judge should indicate if the judge is contemplating imposing a different sentence to allow the parties an opportunity to make ‑ ‑ ‑

HAYNE J:   Why?  You are treating the Crown as a party to a general issue joined between parties, are you not, in that submission?

MR ODGERS:   No, your Honour ‑ ‑ ‑

HAYNE J:   What is the legal foundation that underpins the proposition that the Crown, if it says “Our range is X to Y”, would oblige the judge to say “I am thinking of departing from range X to Y”?

MR ODGERS:   Pantorno, your Honour.

HAYNE J:   Yes, what in Pantorno?

MR ODGERS:   If I could just say this?  It is a submission of law that is made by the Crown and joined in in some cases by the offender.  Pantorno says that if the judge is contemplating taking a different view of the law then the judge, as a matter of procedural fairness, should draw that to the attention of the parties so that they can make submissions in response to that.

FRENCH CJ:   What is the submission of law?  That we have agreed that this is an appropriate ‑ ‑ ‑

MR ODGERS:   No, no, no.  The submission of law is that it would not be open as a matter of law to impose a sentence outside the range that is nominated.

FRENCH CJ:   But if the Crown, pursuant to a plea agreement, indicates a range, which indication was an incentive to the entry of the plea of guilty ‑ ‑ ‑

MR ODGERS:   Yes.

FRENCH CJ:   ‑ ‑ ‑ it does not follow from that that the range sets the legal boundaries of what is open to the judge.

MR ODGERS:   Of course not.

FRENCH CJ:   So, I will just come back to the question.  In those circumstances, what is the submission of law that is made by indication of the range?

MR ODGERS:   No, no.  The submission as to range is a submission of law.

FRENCH CJ:   What is the legal proposition?  That this is open or that this is something that we would not seek more than this?

MR ODGERS:   There is some confusion about the language of “range”.  Sometimes we talk about ‑ ‑ ‑

FRENCH CJ:   Well, we are looking at it in the context of a plea agreement.

MR ODGERS:   I understand that, your Honour, but can I just clarify?  The word “range” can mean different things to different people.  In some contexts it is used to describe the range of sentences that have been imposed in other cases for similar offenders.

FRENCH CJ:   I understand that.

MR ODGERS:   We are not in that area of discourse.  The area here is essentially House v The King‑type error, which is, as your Honours appreciate, that even though you cannot point to a specific error that if a sentence was “outside the range” – to use language that this Court has used in Hili and in Bugmy – then it would involve legal error, that is, there must have been an error of principle.

FRENCH CJ:   Yes, I understand that.

MR ODGERS:   So, therefore, a Crown submission as to an appropriate range is a submission of law that you would be falling into legal error if you imposed a sentence outside that range.

KIEFEL J:   Is that right or is it, simply, it is a submission of what we have agreed to facilitate a plea bargain and the Crown thinks that, in all the circumstances, this might be okay?  But all it is doing is representing the agreement between the parties.

MR ODGERS:   With respect, no, your Honour.  MacNeil‑Brown, which is part of the foundation of the practice in Victoria ‑ ‑ ‑

HAYNE J:   Well, it does not bind us, Mr Odgers.

MR ODGERS:   No, I know that, your Honour.  I am just explaining to her Honour what a submission as to range in Victoria is.  In MacNeil‑Brown, the court said a Crown submission as to range is essentially a submission of the type I have just described, that is, a submission that a sentencing judge would be falling into appealable error if a certain sentence was imposed.

KIEFEL J:   But I thought you had denied that, in the context of a plea agreement, the sentencing range put forward was one, objectively, which had regard to comparable sentences setting up the range.  I thought you had denied that that was the area that we were in.

MR ODGERS:   No, no.  What I am saying, your Honour – what I had tried to say was that when we are talking about a range in this case, that is, the prosecution range, we are talking about House v The King‑type range, that is, a range where if you impose a sentence which is higher than the top of the range or lower than the bottom of the range, you will be falling into appealable error.  That is the range we are talking about. 

KIEFEL J:   Are you seriously suggesting that, in the context of a plea bargain, the prosecution would make a submission to the court that the agreement that has been reached is such that if you disagree with it you would be falling into appealable error?  Are you seriously suggesting that?

MR ODGERS:   I am seriously suggesting that.  Can I just ‑ ‑ ‑

FRENCH CJ:   But does it not work this way, Mr Odgers?  You have a lawful range, a range open in law to the judge in theory, say X through to Z, and the Crown has some negotiations with the accused and says we will indicate a range X through to Y, which is less than Z, if you plead guilty.

MR ODGERS:   With respect, your Honour, I am going to stop right there because when ‑ ‑ ‑

FRENCH CJ:   I beg your pardon.

MR ODGERS:   I am just going to say, your Honour, I do apologise, your Honour.  I am just, that is not what happened here.

FRENCH CJ:   Is that not at the heart of your proposition, that the court is obliged to take into account or to hear from the Crown and take into account as a relevant consideration the Crown’s indication of range based upon a negotiation with the accused which has led the accused to enter a plea of guilty?

MR ODGERS:   Yes, your Honour, but when the Crown discloses its range - in this case it is doing it pursuant to MacNeil-Brown and it is disclosing to the defence what he would submit on, before the sentencing judge, in accordance with its obligations under MacNeil-Brown, if asked by the judge or if it considered the judge might be falling into appealable error - it is disclosing to the defence the submission it would make as to the appropriate sentencing range and that is that the Crown has a position as to whether or not the judge would be falling into error if the judge imposed a sentence outside that range. 

What happens thereafter in terms of negotiation is a separate matter.  In this case, what the Crown is doing is complying with its MacNeil‑Brown obligations – I withdraw that.  There is no MacNeil‑Brown obligation to disclose in advance of sentencing what the Crown would do if asked by the judge but, as the Crown has put in submissions to your Honours, that is what happened here.  The Crown, DPP, has a practice of disclosing what submission would be made to the judge about the appropriate range in accordance with MacNeil-Brown obligations.  That was done.  It then became relevant to the decision of the applicant to plead guilty.

So the reason I rudely interrupted your Honour was to put the proposition that the Crown is not putting the range forward as part of a negotiation - we are going to suggest a range lower than it should be – that is not what they are doing.  What they are doing is they are disclosing the range that they will propose to put to the judge in compliance with their MacNeil‑Brown obligations. 

So just returning to your Honour Justice Kiefel, I hope that what I have just said explains what happened here, that the Crown disclosed at a relatively early stage, at least in this letter of 10 October at page 54 of the appeal book at line 30:

The sentencing range given was -

and it is given and that is what is conventionally called a MacNeil‑Brown, a disclosure of the MacNeil‑Brown range, the range that would be given to the judge, if the judge asked for it.

KIEFEL J:   I am just having difficulty understanding why you would say that in the context of negotiations about plea that the prosecutor is talking about a range which would otherwise indicate appealable error.  They are not talking to the court, they are talking to the person who is about to plead, for goodness sake.

MR ODGERS:   Perhaps the question is better directed to Mr Bromwich, but my understanding ‑ ‑ ‑

KIEFEL J:   No, it is directed to you.

MR ODGERS:   Yes, your Honour.  My answer ‑ ‑ ‑

KIEFEL J:   Where does the Crown anywhere say, “And by the way, we would be happy to say to the court that if the court didn’t accede to this we would consider it would be appealable error” or “We would regard it our duty to put forward this range as being of the kind that you ‑ ‑ ‑

MR ODGERS:   That was put in the submissions on behalf of the respondent, which I have not cavilled with, but it reflects what I understand to be the practice in Victoria.  As I understand it, since MacNeil‑Brown where the Victorian Court of Appeal indicated that as part of the prosecutor’s duty to assist the sentencing court the Crown should be in a position to indicate a sentencing range of the kind I have been describing, that is you would be falling into appealable error if it was a sentence outside that range, but since that decision the Crown should be in a position to do so, if asked, or if the Crown thought the judge might be falling into error it has become the practice for both the State DPP and, more importantly, the Commonwealth DPP to disclose to the defence at some point the range that they will be submitting to the judge if those circumstances arise.

That practice has changed in Victoria, as I understand it, in the decision of this Court - in the Court of Appeal in respect of these applicants the court indicated that that practice was changing and that the Victorian DPP indicated they were no longer going to disclose their MacNeil‑Brown range.  I am not quite sure what the current practice of the Commonwealth DPP in Victoria is but, of course, for the applicant he was making decisions about whether or not to plead in an environment, a legal environment, in which the prosecution chose to disclose to him the sentence, the range that they would, in appropriate circumstances, submit to the sentencing court.

BELL J:   Coming back to your idea that this gave rise to some form of expectation on your client’s behalf, accepting that the MacNeil‑Brown obligation that you speak of is that the prosecution will at the request of the judge provide a range, what is the expectation, that in the event the judge requested a range this is the range that would be given.  Is that the expectation?

MR ODGERS:   No, it is not limited to that, as I put earlier.

BELL J:   Why is it not limited to that when one looks at the legal environment in which the decision was made?

MR ODGERS:   Yes, and the answer is that once – it is the fact that it has now become something that has been disclosed during plea negotiations which changes things because it is no longer a situation in which there has been an anticipation of a MacNeil‑Brown situation.  It has now become a situation in which there has been disclosure to the defence during plea negotiations and there is every reason to believe that that disclosure has influenced the decision of the accused to plead guilty.

HAYNE J:   Albeit so, you do not seek to withdraw the plea on the basis that we were misled.  We are faced with a plea which must be taken – must be taken to be the conscious voluntary act of the accused man.

MR ODGERS:   Yes, I understand that.

HAYNE J:   End of game.

MR ODGERS:   Well, we say – and I have put it before – that there are considerations of fairness and policy which require a court to allow the offender to put before the sentencing court the range which he was informed would be the range that the Crown would submit if permitted and that is because he would have had a reasonable explanation that somehow that information would be communicated to the sentencing court.  From the point of view of the offender, he has very little interest in what the Crown might say if the judge is not going to be made aware of it.  It is the anticipation that the judge is going to be made aware of it which would bear on his decision to plead guilty.  In this case, the judge was told by Mr Dunn that this was part of the plea negotiations and implicitly that it was something that affected the accused, the offender in making his decision to plead ‑ ‑ ‑

BELL J:   Surely the court must proceed upon the assumption that a person who is represented will receive advice consistent with the law that in the event the judge asks for an indication from the Crown we expect this is the indication that would be given, but whether or not the judge seeks that assistance is a matter for the judge.  What gives rise to the expectation, having regard to MacNeil‑Brown?

MR ODGERS:   Your Honour, I respectfully submit that the sentencing judge in this case conflated two questions.  One is there is a duty on the Crown to provide a range and a separate question which is can an offender inform the court of a Crown range that has been disclosed during plea negotiations.  They are completely different things and, with respect, if one had been advising Mr Barbaro back in 2011, I very much doubt whether there would have been many lawyers who would have said “If we try to inform the judge of this, the judge is going to refuse to even hear it ‑ ‑ ‑

BELL J:   That is a different issue.

MR ODGERS:   But that is the issue in this case.

BELL J:   The matter I am raising with you, Mr Odgers, is the creation of the expectation that the MacNeil‑Brown range would be given, having regard to the terms in which that decision is expressed.

MR ODGERS:   I am not saying, your Honour, that there was an expectation that the Crown would make a submission as to that range in accordance with the principles of MacNeil‑Brown.  I am not saying that is the expectation.  The expectation is that the defence would be permitted to inform the judge, quite apart from MacNeil‑Brown principles – it has nothing to do with MacNeil‑Brown.  It has become a situation where I have been told that this is the Crown’s range.  That is something I could probably live with.  I would expect that if the defence draws that to the attention of the judge, the judge would say “Thank you very much.  Yes, that is interesting” and would give it some consideration and, perhaps we would say hopefully, some serious consideration, and may well take the view that that is the appropriate sentence.  Of course, we would be told it cannot be binding, but I would be very surprised, with respect, that many lawyers would have said there is a high probability a judge would just simply refuse out of hand to even hear it, which is what happened in this case.

HAYNE J:   Be it so, can I just examine with you a little this notion of range?  Expressing a range in terms of the kind found in the letter suggests, does it not, a degree of precision, namely, that anything by way of head sentence greater than 37 years is manifestly excessive.  Is that right?  

MR ODGERS:   No, your Honour, because the Victorian Court of Appeal in MacNeil‑Brown said that the range can only be indicative.

HAYNE J:   Exactly so, and that ‑ ‑ ‑

MR ODGERS:   And could also - sorry, your Honour.

HAYNE J:   If you do not wish to stay for the question, do not, Mr Odgers.  Go on. 

MR ODGERS:   I am sorry, your Honour, I did not mean to interrupt.  I was just going to ‑ ‑ ‑

HAYNE J:   Go on.

MR ODGERS:   I was going to say as well, and, of course, the Crown – everyone understands that it depends on the facts as found by the sentencing judge and the facts that the Crown is proceeding on for the basis of working out what is an appropriate range may not be the facts as found by the sentencing judge.  So for that reason as well, of course, it cannot be anything more than indicative.  So I am saying therefore, your Honour, that MacNeil‑Brown itself recognises that when the Crown provides that kind of numbers, range with numbers, that the Crown is not necessarily thereby saying that 37 years and one day is manifestly excessive.  It is an indication of what the Crown regards as a sentence that would be lawful.

I was at 54 – it is also relevant to note, pursuant to this argument about the fact that this is all occurring during plea negotiations – that at page 55, in the first full paragraph, it was said:

By way of general observation, we note that at our meeting on 24 June 2011, the parties did not seem to be too far apart as regards either the counts that would need to be included on any ‘plea indictment’, nor on the minimum term that you expected your client would need to serve.

So, clearly, there is ongoing discussion in which it is understood that the Crown is advancing, or indicating a range and the defence is responding with a range and the negotiations continue.

BELL J:   Leading to what is described at application book 175, line 5, as the parties having settled.

MR ODGERS:   Yes, yes.

BELL J:   That aspect.

MR ODGERS:   Yes.

BELL J:   Could I come back to the question of the policy that would commend a view that it is desirable in the administration of the criminal justice that the judge will require to take into account as a serious consideration the settlement arrived at by the Crown and the accused?

MR ODGERS:   Yes, sorry, your Honour.  As a matter of fairness we say that if this has played a part in the decision to plead then it should be taken into account.  As a matter of policy if in fact a plea of guilty has been partially obtained through the Crown disclosing such a range to the accused and that it is in the public interest to encourage pleas of guilty then of course if it turns out that judges refuse to hear the Crown range then the whole system will collapse.

It is designed to encourage a plea because it is implicit within it that either the Crown will tell the judge what the Crown range is or the offender will through his lawyers inform the judge of the Crown range - not binding but something to be taken, serious consideration - that has encouraged the making of a plea.  If the courts then turn around and say, “Sorry, too bad, we’re not even going to listen to the Crown range” then, of course, subsequent accused people will have very little interest in hearing what the disclosed Crown range is.  I think that is the policy argument, your Honour.

Of course, there was a second letter.  I just draw your Honours’ attention to it.  It is at page 56.  The important part is at page 58 where in the first paragraph it is stated:

Given the available sentence for the trafficking charge is the same as that for the import, the appropriate sentencing range –

Again this is the Crown’s position as to the range that is appropriate in all the circumstances of this case –

previously provided to you remains unaltered by the change in charge.

In the third paragraph:

Should your client accept the current offer, we would anticipate having him arraigned on an appropriate indictment no later than 28 November 2011.

Of course, he did accept the current offer and he has entered his plea a few days later.  This letter was written, of course, on 3 November and he entered his plea on 1 December.

GAGELER J:   What is the bargain that is formed by accepting the offer?

MR ODGERS:   Again, I go back to the oral summary, paragraph 3, that by the disclosure in the context of these plea negotiations - paragraph (c) is the important one - that the prosecution would not object – quite apart from MacNeil‑Brown – to the applicant seeking to inform the sentencing judge of the prosecutor’s disclosed position with the expectation that the judge would then give serious consideration to that Crown position.  That is what I say the bargain is.  Then returning, after a long discursus, to 175 of the appeal book, at the top of the page, Mr Dunn referred to the two letters and said:

which tells you how the matter was settled and what was agreed between the parties as to the sentencing range –

Now, I am not entirely sure what he means there – agreed as to the sentencing range.  I do not think it means agreed that the Crown would submit it.  I do not think it means that because MacNeil‑Brown does not necessarily go that far.  It does not mean necessarily agreed.  One interpretation is that Mr Dunn was accepting that from the offender’s point of view it was agreed that that was the appropriate sentencing range.  That may be one interpretation of it but what is clear is that Mr Dunn was putting that it was a matter that was part of the settlement process and perhaps agreed that the range would be put before the judge.  That might be one way to understand it.  In any event, he goes on to say:

and what was agreed between the parties ‑ ‑ ‑

and at that point her Honour intervenes:

And you do understand what I’ve said about sentencing range?

In my submission, Mr Dunn was about to tell her explicitly what the sentencing range was that the Crown had disclosed that they regarded as the appropriate sentencing range and her Honour reminded him of what her Honour had said earlier, which I have taken your Honours to, and that is the clearest possible indication that:  one, he tried to make a submission about the range and revealing it and her Honour made very clear to him that he was not to do so and he complied.

KIEFEL J:   If the court had said to the prosecutor, “I know what you say about what the sentencing range was that was agreed between the parties, but remembering your duty to the court, what do you say is the appropriate sentencing range, putting aside any matters discussed in plea bargaining” – do you say it could only be that sentencing range which was discussed as between the parties?

MR ODGERS:   That is certainly my understanding of what happened because my understanding of what happened is the sentencing range that was first flagged was in accordance with MacNeil‑Brown principles and then it did not change.

KIEFEL J:   You are overlaying the negotiations with the parties by reference to the Court of Appeal decision in MacNeil‑Brown.

MR ODGERS:   I am, yes.  I am on the basis that, as I understand the position ‑ ‑ ‑

KIEFEL J:   It is hard to see what importance then that the sentencing range agreed between the parties is that leads to an appeal to this Court if it is what you would expect the sentencing judge to come to anyway.

MR ODGERS:   Well, the importance is that the sentencing judge in this case imposed a sentence which was significantly higher ‑ ‑ ‑

KIEFEL J:   But you are not appealing on the basis that this was manifestly excessive.  You are relying only upon procedural ‑ ‑ ‑

MR ODGERS:   Yes. 

KIEFEL J:   ‑ ‑ ‑ fairness grounds.

MR ODGERS:   Yes, and we are saying that the result might have been different if her Honour had received the Crown sentencing range and the reasons in support of it, her sentence might have been different.  She might have taken a view that in the light of all of that that it was appropriate to sentence within that range.  I accept that of course her sentence was not manifestly excessive, but that is a different thing from saying that she might have imposed a lower sentence than the one she did impose if she had received that submission.

If there was unfairness in refusing to hear the submission, then the question really only then becomes is it possible that the outcome might have been different if she had accorded procedural fairness and had heard the submission and whatever was said in support of it and, if Pantorno principles apply, had given the parties an opportunity ‑ ‑ ‑

KIEFEL J:   Pantorno does not relate to sentencing, does it?

MR ODGERS:   Yes, it is a sentencing case – and given, if that principle operated here, to impose an obligation on her to say “Well, I am thinking of imposing a higher sentence than that”.  Why should I not allow the parties to then put arguments as to why she should not?  If all that process had been gone through, and fairness had been accorded ‑ ‑ ‑

KIEFEL J:   I seem to recall, but you might correct me – I am sure you would – on this, that the sentencing judge made some reference to there not being any comparable sentence in this case.

MR ODGERS:   Yes, that is right.

KIEFEL J:   So how is the range arrived at between the parties that would have been appealable error?

MR ODGERS:   As I am reminded, of course, the range initially was one that the Crown formulated without the involvement of the applicant.  I do not know how the Crown formulated their range.  No doubt they took into account the objective circumstances, the subjective matters that might be relevant, the plea of guilty, comparable cases to the extent that they provided assistance – even cases which are not strictly comparable still assist in understanding the relevant principles.  All of the matters that bear on working out what is the appropriate sentence, or rather, the appropriate range, no doubt they were taken into account by an experienced Crown who had a very good understanding of all the circumstances of the case and had ‑ ‑ ‑

KIEFEL J:   But all the circumstances – and I will not keep reiterating this – in the context of a negotiation about a plea; that is what all the circumstances include.

MR ODGERS:   Yes.

KIEFEL J:   That means that there is an extra factor involved in that range that would not be relevant to the sentencing judge’s consideration.

MR ODGERS:   But I do respectfully submit that when the range was initially formulated, it was not formulated as part of a negotiation.  It was something that was ‑ ‑ ‑

KIEFEL J:   Well, you say that, I cannot see it in the terms of the negotiations.

MR ODGERS:   Yes, I do say that, based on my understanding of the practice in Victoria.

FRENCH CJ:   So it goes like this.  The Crown says “This is what we think is an appropriate range”.  The accused says “I can live with that, I will plead guilty”.

MR ODGERS:   Yes.

FRENCH CJ:   Then if the court does not allow the Crown to put a submission as to range, you say the unfairness resides in, what, the disappointed expectation of the accused?  I think that comes back to the very first question that was put by Justice Kiefel to you.

MR ODGERS:   Yes.  There is also the policy proposition.

FRENCH CJ:   But a fairness point is that point and that point alone, is it not?

MR ODGERS:   Yes, I think that is a fair summary of it, your Honour.

BELL J:   At some stage, Mr Odgers, for my part it would be useful for you to deal with a submission that the respondent puts at paragraph 43 that:

Sentencing law is already heavily burdened by explicit legislative obligations and strongly guided by a large and detailed body of sentencing case law.

This is in support of a contention that the introduction of some of the concepts that find their way into your argument is not helpful.  Added to that now in light of the argument, as I understand it, is an obligation on a sentencing judge to give reasons for why the sentencing judge has chosen to depart from the range proposed by the Crown.  That just seems to add a layer into the already somewhat elaborate, some might think Byzantine process, that many judges go through in imposing sentence and in giving reasons for the sentence.

MR ODGERS:   Your Honour, if the State, the Crown, takes action which encourages somebody to plead guilty, which is in the public interest if they are guilty, and in that process, as the Chief Justice put it, advance a range which the offender thinks “I can live with” and expects will be something taken into account by the sentencing judge then if that happens then, yes, the sentencing judge should give it serious consideration and, yes, if necessary, give reasons why it is not something that the judge regards as persuasive.  It need not be lengthy.

It would be part of the reasons that the judge would, in any event, give as to why the sentence that the judge determined was appropriate was the sentence the judge imposed.  As doing that the judge would, by that very process, necessarily show why the sentencing range advanced by the Crown was one which was not one which the judge accepted.  Muldrock requires reasons why a standard non‑parole period is not imposed, or at least it did until the legislation was changed, but that may not require much more than to say “I have engaged in an instinctive synthesis of all the factors.  This is the sentence I regard as appropriate.  For those reasons it is not appropriate to impose a standard non‑parole period”.

It is the same situation.  In this case it is because of what has happened, because of how the Crown has chosen to act in disclosing its range ‑ it did not have to but it did so ‑ which then led to a negotiated plea in which the offender believes is something which will be taken into account by the judge, a not unreasonable expectation, either by the Crown informing the judge or his own legal representatives informing the judge.  To the extent that that may require the judge to say something as to why that range is not appropriate or applicable then that is not asking too much.

BELL J:   Added to that, when one turns to Mr Silbert’s submissions, are illustrations such as a County Court judge indicating that that judge considers the Crown’s range of sentences not an appropriate range and sending it back to the Crown for further revision.  The whole process seems to be getting far removed from an idea that the parties are to place relevant factual material and material touching on comparable cases before the court and the court decides the appropriate sentence.

MR ODGERS:   This overlaps with something that Justice Hayne put to me about GAS.  In my submission, there is nothing – I withdraw that.  A submission as to law is one that is entirely permissible, both from the Crown and the offender, and a submission as to whether or not a sentence would involve appealable error is a submission that both sides are entitled to make.  Going on from that, the situation is – I am sorry, I have lost my train of thought.  I think the – I am sorry, I had something to say but I have now forgotten it. 

BELL J:   You were going to go to GAS.

MR ODGERS:   I was referring to GAS.  I now recall.  Sentencing practice has changed in some jurisdictions significantly over the years.  In particular, in terms of the nature of plea negotiations and in terms of the willingness of the Crown to indicate, either before the sentencing judge, the Crown’s position as to whether a sentence would involve appealable error, whether there is an appropriate range, and going back from that anticipating that the Crown is prepared to do that at sentencing, to give an indication to the defence at an early stage as to what the Crown would be submitting, if permitted, which has the effect of encouraging a plea of guilty if, in fact, that is something the offender can live with – to use the Chief Justice’s language.

That is happening.  It has been happening in some jurisdictions in this country for a number of years.  Of course, some Crown Prosecutors do not do it, some do.  The practices vary from State to State.  As I understand it, it is quite common in Queensland.  It is unheard of in other jurisdictions.  In New South Wales there is a variety of practices.  Some Crowns do it and some do not, but it happens.  It happens both in terms of making submissions as to range before the sentencing judge and it happens in terms of giving disclosure at an early stage of the defence of what will be submitted as part of the process of plea negotiation.

So that is the world in which we live.  That is what happened in this case.  If a sentencing judge turns around and says I am just not interested in any of that and I am going to disregard it – what was put by the Crown – then, as I say, in my submission, there is both unfairness and a problematic policy outcome.

If I could just finish with what happened before the sentencing judge; I will come back to GAS, I promise.  The respondent has contended that notwithstanding what I have just taken your Honours to, that Mr Dunn did have an opportunity to put the Crown ‑ to inform the judge of the Crown sentencing range in respect of Mr Barbaro.  As your Honours no doubt appreciate, counsel for Mr Zirilli did, despite her Honour’s clear indication that he should not, did provide the Crown sentencing range in respect of Mr Zirilli and it is suggested that Mr Dunn should have done the same thing.  If you can go to page 214, just so I can ‑ I am sure Mr Walmsley will no doubt ‑ ‑ ‑

FRENCH CJ:   Your argument is operating on the premise anyway that whoever said what to whom, the judge did not take account of any sentencing range.

MR ODGERS:   Did not permit Mr Dunn to inform her of the Crown range ‑ ‑ ‑

FRENCH CJ:   Did not take any account of it.

MR ODGERS:   ‑ ‑ ‑ and indicated clearly that if she was informed of it, she would not take it into account.  That was the position so I will not take you then to what happened thereafter.  Having gone through that, can I just then make a submission that what the Court of Appeal said at appeal book 351, line 38, should not be regarded as correct where it said ‑ referring to senior counsel for Mr Barbaro:

Nor did he raise any question about the judge’s rejection of the Crown submission, saying instead that he could ‘understand [her Honour’s] reluctance to talk about the Crown range’.

As I have demonstrated, that occurred at an earlier stage.  He then tried to get it before her Honour.  Her Honour made it very clear he should not and he complied with that.  Equally, the respondents in their submissions at six occasions have put the argument that Mr Dunn did have an opportunity to make submissions about the Crown range in respect of his client and that he chose not to.  In my submission, that repeated submission by the Crown should not be accepted.

Just going through point 3 on the oral outline, clearly (a) and (b) related to MacNeil‑Brown as regards what a prosecutor was undertaking when the Crown Prosecutor disclosed the range, and I have already dealt with this.  I do make the point, I think I have made it already, but I will make it again, that at least in respect of (b) there was a significant risk that the judge would fall into error regarding the applicable range, at least from the point of view of the Crown, because the sentencing judge made it clear on a number of occasions that she was contemplating a life sentence, which one would have thought fell outside even the indicative range that the Crown had disclosed to the applicant.

HAYNE J:   That is, do you say that in the events that had happened in this case, the Crown was bound to submit that the sentencing judge was not entitled to sentence the accused on the basis that his offending was an example of the worst case of offending?

MR ODGERS:   What I say is that, in accordance with my understanding of MacNeil‑Brown and my understanding of what the Crown did when they disclosed the range that they did, a sentence of life would fall outside the range that the Crown regarded as the appropriate or applicable range, and accordingly in accordance with MacNeil‑Brown, it would be incumbent on the Crown to make a submission to the judge that a sentence of life would be, in the Crown’s submission, falling into error as manifestly excessive in all the circumstances.

Whether that is primarily because of the very great significance of the plea of guilty in circumstances where the trial that was anticipated would have been enormously expensive and time consuming and whatever, I accept it was well open to take the view, and no doubt the Crown probably took the view that it was a worst case, objectively speaking, but the Crown no doubt took the view that notwithstanding that, it was appropriate not to impose the maximum penalty given the very great significance that should be accorded to the plea of guilty.

HAYNE J:   Does not the conclusion that there was no manifest excess bar the argument you have just advanced?

MR ODGERS:   It shows that the Crown was wrong in their view as to what was the appropriate sentencing range.  But it is a different thing to say that it shows that the Crown should not have made a submission, because the fact of the matter is the Crown had a view as to the appropriate sentencing range, that in accordance with MacNeil‑Brown they had the obligation.  If it turned out that they were wrong, so be it.  If the judge took it into account and then sentenced to life, procedural fairness would have been satisfied and an appeal would have failed.

BELL J:   The trial judge’s failure to take into account and give serious consideration and reasons for not acting on a sentencing range that was wrong is the nub of your argument?

MR ODGERS:   I think that is right, your Honour.

GAGELER J:   If you look to what you identify as the bargain that came out of the exchange of correspondence, paragraph 3(a) to (d) of your outline, is any part of that bargain breached in the circumstances of this case, or is it simply non‑performance of paragraph (a) because the sentencing judge did not make the relevant request?

MR ODGERS:   No.  Arguably, I put the proposition that there was non‑performance in respect of (b).  I have put that argument, but that is not the nub of the argument that I am advancing.  The core of the argument I am advancing is not that the Crown has in some way failed to comply with its ethical obligations.  If the judge tells the Crown “you are not to tell me what your disclosed sentencing range is”, then that is the end of it.  The Crown cannot be criticised for obeying the judge.  The criticism is of the judge for, in the light of the fact that there was this agreement – given considerations of both fairness and policy – the judge, certainly as a matter of procedural fairness, should have permitted the offender, through his legal representatives , to inform her of the Crown’s range.  That is the complaint.

GAGELER J:   That would be a submission of law, would it?

MR ODGERS:   Yes.

GAGELER J:   You have used the language of mixed law and fact.  The fact of it escapes me.

MR ODGERS:   I think I did that.  It just shows my own ignorance.  But what I meant by that was that it would be a submission of law based on certain assumed facts for the purposes of working out what is the applicable sentencing range.  That is what I am referring to.  So, yes, it is a submission of law.  So it was agreed that the Crown would not object to the applicant informing the judge of the Crown’s position on a proposition of law, bearing on the ultimate outcome of the sentencing proceedings.

GAGELER J:   Do you accept the Crown’s proposition of law was wrong, that the available range was actually greater?

MR ODGERS:   I have to.  The Crown’s position as to the range was necessarily wrong because the Court of Appeal has held that it was not manifestly excessive and that, therefore, the Crown’s range was wrong, so yes.

GAGELER J:   Does your case become that her Honour was obliged to have regard to a submission of law that was wrong?

MR ODGERS:   Yes, yes.

GAGELER J:   Well, there goes your natural justice case, I think – Stead’s Case in the High Court.

MR ODGERS:   Yes.  I am trying to dig myself out of the hole in which I find myself.  The Crown’s submission is also, by putting a range, that it would be open to her Honour, in all the circumstances, to impose a sentence at the bottom of the range.  That is part of the submission.  It is not just that you would be falling into error if you imposed a sentence above the top of the range.  There is this other aspect which is something upon which I place more reliance, which is a submission that is to the sentencing judge.

Our submission is that in all the circumstances of this case, it would not be manifestly inadequate.  It would be open to your Honour to impose a head sentence of 32 years and it would be open to your Honour to impose a non‑parole period of 24 years.  They would not be manifestly inadequate sentences.  In my submission, the Crown putting that submission to the judge is something that would not be wrong.  It would not be an error in the sense that your Honour has pointed to the head sentence or the top of the range, and is something that might have affected her Honour’s decision as to what was the appropriate sentence.

I appreciate there is a difference between whether a sentence is open at the bottom of the range, is different from what is the appropriate sentence but, nonetheless, if Crown is – and it happens all the time in sentencing proceedings – if a situation arises where the defence says an appropriate sentence is X and the Crown then turns around and says, well, we would say that that was within the range, or it is at the bottom of the range but it is within the range, that often is highly significant in terms of the ultimate outcome.  Judges will often – not always, but often – take that into account and quite commonly impose that sentence which is the one that the defence has put before the judge and which the Crown has conceded is open.  It happens all the time.

So again my argument is that if the judge had allowed the defence to inform her of the Crown’s concession that a sentence of 32 with 24 on the bottom was within the range that might have changed her view as to what was the appropriate sentence.

FRENCH CJ:   Now, I think this gets us up, does it, to paragraph 7 of your oral outline or have we passed that as well?

MR ODGERS:   Yes, we are just about there and we will soon be at GAS.  I will not take your Honours to Hili or Bugmy or, indeed, MacNeil‑Brown.  I think I have covered them.  The only reason I mentioned them was for the proposition that we are talking House v The King‑type of error and I think I have made that clear.  Paragraph 7 of the outline - the first proposition that the proceedings are adversarial - I am not sure that there is any real dispute about this but in Weininger there was some discussion in this Court about the nature of sentencing proceedings and whether they are adversarial or whether they are inquisitorial or some combination of the two.  The conclusion, with respect, is somewhat ambiguous in Weininger in that the Court ‑ ‑ ‑

FRENCH CJ:   Was this about factual disputes?

MR ODGERS:   Yes.  In Weininger that is true.

FRENCH CJ:   That is a different setting.

MR ODGERS:   It is a different setting.  Perhaps it is better if I go straight to GAS (2004) 217 CLR 198 where something much closer to the current case occurred. If I could just take your Honours to paragraph 27 of the plurality. This was a case in which the complaint was not what the judge had done but a complaint about what the prosecution had done and an argument that the prosecution had acted inconsistently with a plea agreement. What is said at 27 is that the prosecution in conducting an appeal made submissions that were:

contrary to “the plea agreement reached with the defendants at trial”.

The court said in paragraph 28:

First, it is the prosecutor, alone, who has the responsibility of deciding the charges –

Paragraph 29:

Secondly, it is the accused person, alone, who must decide whether to plead guilty to the charge preferred.  That decision must be made freely and, in this case, it was made with the benefit of legal advice.  Once again, the judge is not, and in this case was not, involved in the decision.  Such a decision is not made with any foreknowledge of the sentence that will be imposed.  No doubt it will often be made in the light of professional advice as to what might reasonably be expected to happen –

My submission is that one would have expected that the advice would have been the Crown’s range is not binding.  The judge could well impose a heavier sentence, but we anticipate, quite apart from MacNeil‑Brown, that the judge will be informed somehow of that prosecution range and that will be something the judge will give serious consideration to.  That is what would be a reasonable expectation as to what advice he would have received.

FRENCH CJ:   Well, nothing in that submission turns on any characterisation of the sentencing process, putting aside issues of contested fact, as adversarial.  Is that right?

MR ODGERS:   I think it is right, your Honour.

FRENCH CJ:   So we can disregard that aspect of your submission in your oral outline?

MR ODGERS:   I am not sure I can make – perhaps I have misunderstood the question your Honour asked me.

FRENCH CJ:   You say sentencing proceedings are adversarial.  I am just wondering what role that has to play in the submissions, having regard to what you have said, and the apparent absence of any such statement, questions of contested fact apart.

MR ODGERS:   I am sorry, your Honour.  GAS is perhaps more relevant to the third proposition in the outline, which is where you have plea negotiations, a circumstance that the prosecution position was relevant to:

the applicant’s decision to enter a plea of guilty was an additional reason why the sentencing judge should have permitted and taken into account the prosecution submission –

GAS bears on that, of course, but it also bears on the proposition that if you have adversarial proceedings, if it is not an inquisition, then the parties have a big role to play in the conduct of those proceedings, and they must be accorded procedural fairness, obviously, and they also must be given the opportunity to make submissions, to make submissions both on questions of fact and questions of law.  This is all part of the adversarial nature of sentencing proceedings.  That supports a proposition that at the least, the prosecution and the defence should be entitled to make a submission as to sentencing range.  We are not in the MacNeil‑Brown territory of whether or not there is a duty on the Crown.  It is rather, is the Crown and the applicant entitled to make a submission as to sentencing range?

HAYNE J:   The proposition proceeds from a suppressed premise, the validity of which needs to be examined.  The suppressed premise is that a general issue is joined between Crown and accused on a sentencing hearing, and that is not right; see Olbrich.

MR ODGERS:   I completely accept what your Honour has said ‑ ‑ ‑

HAYNE J:   There is, no doubt, if there is a contested question of fact, issue is joined about that.

MR ODGERS:   Yes, your Honour.

HAYNE J:   If there is a contest about the applicable principles of law, there may be a contest about that.  But you do not start from a general undifferentiated proposition that says the proceedings are adversarial, therefore.  Is it suppressing the content of a premise?

MR ODGERS:   My submission is that the proper characterisation of the situation is that they are adversarial and everything I have said about entitlement to make submissions about questions of fact and law stands correct but that your Honour is also, with respect, completely correct to say it is not a general issue and what that means is that it is not for the judge to go off and inquire into all facts that might be relevant on sentence as Olbrich and Weininger emphasised.  There are some matters about which the judge simply does not know the answer and, therefore, is not required to make findings about those facts.  That is consistent with 16A of the Crimes Act (Cth) and it is consistent with general sentencing principle.

But none of that, with respect, bears on the issue before this Court.  The issue before this Court is was the Crown and the offender entitled to make a submission of law about the ultimate – that bear directly on the ultimate resolution of the sentencing proceedings.  It is difficult to imagine a more directly relevant consideration than is a sentence open.

HAYNE J:   My question to you about whether you say the Crown was bound to submit that the sentencing judge could not sentence on the foundation that this was an example of the worst kind of offending because that is what your proposition is.  You say that by giving a range less than life, this was necessarily not a case to be treated as an example of the worst kind of offending with which the provision deals.

MR ODGERS:   My response was that the Crown submission, if permitted, would have been that whether or not you characterised it as being within the worst case there were, presumably, relevant – particularly subjective considerations, including the plea of guilty and the willingness to facilitate the course of justice which meant that it would not be open to impose a sentence of life.  Now, as Justice Gageler has quite forcibly to me pointed out – appropriately pointed out – that submission was wrong.  But in accordance with the Crown’s position before the sentencing judge, if they had been permitted they would have said that is what they would have submitted and, with respect, were entitled to submit.

BELL J:   Can I just take that up with you?  This was the largest importation of prohibited drugs by some considerable factor, was it not?

MR ODGERS:   As I understand it, at that time, yes.

BELL J:   In relation to which the profits were anticipated to be massive.

MR ODGERS:   Yes, your Honour.

BELL J:   Your client was at the apex of those who were responsible for the largest importation of prohibited drugs into the country that had been experienced and he was the person who might be reasonably expected to reap those massive rewards.  What was the entitlement of the Director to wrongly put a submission that it would be an appealable error for the judge not to impose a sentence accepting this fell within the category of the worst case?

MR ODGERS:   Subject to what Justice Gageler has put to me about you do not have an entitlement to make a submission that is wrong, subject to that the Crown had an entitlement to put a submission of law as to whether or not it was open to impose life.  Now, I have conceded several times that that was wrong but, I mean it is, with respect, in an adversarial system, legal representatives are entitled to make submissions of law.  That is how the system works and for a judge to say, without even knowing what your submission is, “I am not going to permit it”, that, with respect, is at the very least, questionable.

BELL J:   Questionable for a judge to consider that the judge would not be assisted by being supplied with a range of sentences, having regard to the circumstances of this case.

MR ODGERS:   Well, her Honour did not know what the Crown range was, but, of course, as was apparent from the way the sentencing proceedings proceeded, Mr Dunn did argue that a sentence of life was not appropriate but the vast bulk of his submissions went to the non‑parole period and, of course, that is - for most offenders that is the most important number, the minimum term on the assumption that they will probably get parole if they are still alive. 

That was the area where the applicant’s legal representative focused his attention.  He, at page 179 of the appeal book, I think provided eight reasons why a perhaps less severe sentence - eight reasons – this is at lines 20 and thereafter - why her Honour should not impose a life sentence and why the non‑parole period should be lower than perhaps would normally be the case.  No doubt, presumably the Crown had in mind those kinds of considerations when the Crown formulated its range, but as I have said, I am focusing my attention more on the bottom of the range rather than the top of the range. 

If these proceedings had proceeded in what I submit the way that they should have, if the applicant had been entitled, had been permitted by the judge to say “Well, there is the Crown range.  It is one where, at the bottom of the range is 32 years on the top and 24 at the bottom.  In my submission, your Honour, your Honour should impose let us say, a sentence of 32 with 24, which is, on the Crown’s position, according to the Crown’s position, open to your Honour” the judge would have then been aware of what precisely the parties were putting to her and there could have been arguments to and fro, further submissions, reasons advanced why that outcome was appropriate, advanced by the applicant, reasons why the Crown conceded that it was open and her Honour, if her Honour had turned around and says, “I am not persuaded by any of that and I believe the appropriate sentence is” - the one that she imposed - then no one could complain.

But the complaint is that she does not even listen to what the Crown says is open to her and does not allow the applicant to advance reasons why that would be appropriate, the bottom of the range sentence.  I was at GAS.  In paragraph 31, it said, in the middle of that paragraph:

It is for the judge, assisted by the submissions of counsel, to decide and apply the law.

I just interpose, that assumes that counsel is entitled to make submissions as to the law and in the context of GAS that assumes that submissions that had been anticipated during plea negotiations are submissions that will be made to the judge who then decides and applies the law, taking into account, giving consideration to those submissions.  It is said:

There may be an understanding between counsel as to the submissions of law that they will make –

That probably is the case in this case.  There was an understanding between the parties that, at the very least, the defence would want the judge to know what was the Crown range as disclosed during the plea negotiations:

but that does not bind the judge ‑

well, no one suggests otherwise ‑

The judge’s responsibility to find and apply the law is not circumscribed by the conduct of counsel.

But, implicit we say in that passage is a recognition that at the very least the parties should be entitled to make submissions about those matters.  Now, in this case at paragraph 33 there is a reference to what the plea agreement alleged and the relevant part is at the bottom of the page, (b)(ii):

accordingly, each appellant should receive a lesser sentence than a principal –

That was the complaint in GAS, that there was a plea agreement that each appellant should receive a lesser sentence than a principal.  There are other aspects to it but that was in contention in GAS.  However, the Court was unpersuaded that there was any such plea agreement, unpersuaded that the Crown had made any kind of concession that it would make such a submission.  At paragraph 36 the point is made, “It discloses no agreement of the kind alleged”.

HAYNE J:   Yes.  I think you need to read paragraph 35.

MR ODGERS:   Yes.

The subject matter of (b)(ii) is a question of sentencing principle.  It was not within the capacity of the parties to agree that each accused would receive a lesser sentence than a principal, whatever exactly that might mean. And what exactly it means is far from clear.  At the most, if there were an agreement of the kind asserted, it would be a common understanding as to a submission of law that would be made to the sentencing judge.

In my submission, none of that is problematic in the present application.  In that case there was great uncertainty as to what the submission was.  It was a submission of law but precisely what kind of submission very uncertain.  In this case, no uncertainty whatsoever.  The submission, which was reduced to writing I might say, in accordance with what GAS said should happen, that plea negotiations should be in writing, could not be clearer.  The Crown says appropriate range is X to Y, non‑parole period A to B, a very clear proposition and clearly there was an agreement in this case before your Honours of the kind alleged.  There was an agreement, as I have said, that at the very least the Crown would not object to the defence informing the judge that the Crown’s position was that a sentence ‑ your Honours understand what the submission would be.

GAGELER J:   Now, your procedural fairness point is that there was an entitlement to make submissions on a question of law and counsel was not heard.

MR ODGERS:   Yes.

GAGELER J:   What precisely is your relevant consideration point, that is, what precisely is the relevant consideration that the judge was obliged to take into account?

MR ODGERS:   I think that an incentive was offered, in effect, to the applicant to plead guilty.  That if he did, the Crown would make such a submission, either itself, or that the judge would be informed of such a submission as to sentencing range.  So, getting back to the policy point, it is well understood that from a point of view of somebody who has been accused of a criminal offence, he would love to know what the sentence he is going to get is.  Now, in our system, he cannot be told that.  But the next best thing – and it may be a significant consideration in whether or not he does decide to take his chances – is if he is told, well, the Crown will be submitting to the judge, the sentence should be X.

So that would not be a range but it would be actually more specific and the Crown would submit that this is the appropriate sentence.  If he can live with that, then that will be an important factor in him deciding to plead guilty.  If it is a range then it somewhat steps back from that but he will be hoping that at least it will put an upper ceiling.  He will be told it will not automatically put an upper ceiling, but he will be told that one would expect that the judge will give serious consideration to it.  He would also be told that the concession that a certain offence – that a sentence is open – may well persuade the judge that it is appropriate to impose that kind of sentence.

So it is all part of a process which will have an impact on whether or not he decides to plead.  In those circumstances that factor is something that - if the judge refuses to even hear what the Crown disclosed range is, then there would be absolutely no incentive whatsoever because it is all very interesting what the Crown says, the judge will not know about it.

So in this case, anyone who came to be sentenced after Mr Barbaro and Mr Zirilli, who is charged with serious offences and the Crown discloses a range, would well say that is useless to me because the judge may well ignore it.  Not ignore it, but not even hear it.  I think that is the best I can do to answer your Honour’s question.  I am not sure I have done it.

GAGELER J:   Or am I, actually.

FRENCH CJ:   Does GAS say anything at all about sentencing ranges? 

MR ODGERS:   No.

FRENCH CJ:   It is all about admissions and facts to be submitted and so forth.

MR ODGERS:   But, your Honour, as I understood what was being put to me from Justice Hayne ‑ ‑ ‑

FRENCH CJ:   I am just asking you what GAS is about, in your submission.

MR ODGERS:   What it is about was that in that case the agreement was said to be about a proposition of law.  I do not read GAS as saying that it was not permissible to make such an agreement.

FRENCH CJ:   You are extrapolating from GAS?

MR ODGERS:   I am extrapolating from it; that is true.  I am attempting, however, to meet a suggestion that GAS stands against – that I am seeking to ask this Court to reconsider GAS.  I am not.  GAS held ‑ ‑ ‑

HAYNE J:   In particular, you accept the third proposition at 211 that it is for the sentencing judge alone to decide the sentence to be imposed.

MR ODGERS:   Of course.  I do accept that.  But GAS implicitly accepts that it is entirely permissible for the parties to agree on submissions of law that will be made to the judge, and implicitly accepts that the judge should listen to those submissions of law.  In GAS, there was no such agreement, and that is why the appeal failed.  There was also great uncertainty about what was suggested to be the relevant proposition of law that was being advanced.  But, in my submission, nothing in GAS indicates that you simply cannot agree between the parties as to a submission of law, and nothing suggests the submission of law in this case was something that could not be agreed to, or that there was no entitlement to expect the judge to listen to it.

GAGELER J:   Can I go back to my earlier question?  Is it your case that the relevant consideration the judge was obliged to take into account in sentencing was the fact of agreement on the making of a submission of law?

MR ODGERS:   I would not limit myself to that.  In my submission, that would be one thing the judge is obliged to take into account, but I would submit that the judge was required to take into account a submission of law as to sentencing range.  In this case, the defence wanted to inform the judge of what would be the prosecution’s submission, if permitted, and wanted the judge to take into account that what I will call “submission” but in effect what it was was a form of concession made before the proceedings.  The Crown made what I would characterise as a concession regarding the applicable law.  The defence wanted the judge to take into account that Crown submission of law.  So it is not just wanting the judge to take into account a fact.  It is wanting the judge to take into account a submission of law.

HAYNE J:   Well, let me just put this to you so that you have an opportunity to answer it.  Your proposition is that in the course of the applicant’s plea in mitigation the prosecution should have been, but was not, permitted to submit, erroneously, that the sentence in fact later imposed would be excessive.  You further submit that the sentencing judge should have, but did not because she could not, have regard to the erroneous submission that a sentence falling outside the range posited by the Crown would be excessive.

MR ODGERS:   I thought in response to Justice Gageler I had gone one step further; that her Honour should have allowed a submission that a sentence at the bottom of the range would be open in all the circumstances of the case.  That was my ultimate position and I am not sure that what your Honour has put to me has included that, and I do not accept that such a submission would have been in error and certainly there has been no ruling to that effect. 

So that my primary submission then is that the applicant was deprived of a submission being made either by the applicant or by the Crown to the judge that a sentence at the bottom of the range would be open and, in circumstances where, if there had been arguments – reasons advanced to support that in accordance with MacNeil‑Brown, there is a possibility that the judge would have imposed a different sentence than the sentence that was imposed.

HAYNE J:   This in face of the arguments advanced by Mr Dunn at appeal book 179 where he positively submits that something less than life should be imposed and positively submits that there should be a non‑parole period set with greater disparity than normal.  So the applicant makes these submissions and you say the applicant is denied the opportunity of being heard, which is what you say when there is a want of procedural fairness, because although he said it the Crown did not.

MR ODGERS:   Well, firstly, in respect of non‑parole period and the head sentence, but focusing on the non‑parole period, he did not descend to numbers in making the submission as to the appropriate – he postulated various possibilities, but his focus was on the proportion between the head sentence and the non‑parole period.  It is because the judge had refused to hear the Crown’s range that numbers did not get injected into the submissions. 

If numbers had got injected into the submissions, one would expect that Mr Dunn would have then made submissions about numbers and one would expect, entirely inconsistent with normal practice, that he would have been pushing the judge to impose a sentence towards the bottom of the Crown’s range and he would have been talking about numbers like a non‑parole period of, say, 24 or 25 years.  That was inevitable that that is what would have happened if the judge had permitted the Crown range submission to be made.

So that one would have expected that Mr Dunn, instead of talking at a high level of generality about relevant factors, would have then descended to looking very carefully at why it was that in the light of all of those considerations a non‑parole period which might on the face of it seem relatively lenient, although most people would not think 25 years is a slap on the wrist, was one that was appropriate or open to her Honour.  So that is what would have happened if the judge had permitted him to disclose the Crown’s concession, if I can use that language, and which the judge refused to permit.

I have referred in the third dot point in paragraph 7 of the outline to cases of Ahmad, GWC and Markarian.  I will not take you to them other than to say this.  Ahmad was a case where a Crown had provided a range to the court ‑ sorry, there had been plea negotiations and I think that the situation was that the Crown made a submission as to the appropriate range before the judge, so a good example of how this happens in various jurisdictions, and the court accepted that the judge had misunderstood what the Crown submission as to the applicable range was.

I think the Crown had said the minimum sentence should be ‑ by that I mean the bottom of the range was a certain head sentence and a certain non‑parole period.  The judge had misunderstood what the Crown said and that was held to constitute error.  So that is a case where the submission was received but misunderstood and the Court of Criminal Appeal accepted that that created a basis for complaint and allowed the appeal and reduced the sentence, not as far down as the Crown had submitted was appropriate but, nonetheless, reduced the sentence.

So by analogy we say, if a judge misunderstanding a Crown range entitles a complaint to succeed, a fortiori, a refusal to even hear the Crown range should as well.  As the court said in Ahmad, a Crown range should be given serious consideration so we say that is right.  We have also given you the Canadian case of GWC.  Again, the practice in Canada is that there are plea negotiations, Crowns come to agreements with offenders.  Sometimes they come to agreements as to specific sentences that are going to be put to the judge; sometimes they come to agreements about range and the Canadian courts accept that a judge should give serious consideration to those, if I use the language, of agreed ranges.  So I rely on what is said in GWC about the reasons why courts should give serious consideration to agreements reached between the parties as to applicable sentencing ranges.

BELL J:   Another view is that which, when he was Chief Justice of New South Wales, Chief Justice Gleeson raised in, I think it was Gallagher, where he spoke of the circumstance that in some instances agreements between the Crown and accused will take into account considerations that leave the court without an effective contradictor, as it were.  That is a consideration that has some role to play in this context.  His Honour was speaking in terms of agreements respecting the extent of the discount for assistance to the authorities, but one can see the same sorts of considerations in play here.

MR ODGERS:   My answer to that, your Honour, is the same answer I gave to Justice Kiefel, which is that as I apprehend the situation the Crown range was advanced – it would be true if the Crown range dropped in the process of negotiation but if the Crown range is being indicated at an early stage based on what the Crown intends to submit on sentence in accordance with MacNeil‑Brown and it does not reduce it then it is less of a – that concern your Honour raises is less applicable, in my respectful submission.

BELL J:   In the circumstances of this case, I am not suggesting it is raised, but it is when one looks at the competing contentions that are before us today concerning the practice, it is a lively issue.

MR ODGERS:   I accept that, your Honour.  One then has competing arguments.  One conclusion might be, well, we should not encourage or allow that kind – those Crown submissions in those sort of circumstances but my submission would be, well, there is a public policy of encouraging pleas of guilty and encouraging agreements as to various matters, cannot bind the judge, it just means that the judge has to be astute to those kinds of concerns, as Justice Gleeson was indicating and, indeed, Justice Gleeson made no suggestion that it was somehow inappropriate for the Crown to make a submission about the appropriate discount for assistance.  No suggestion that there was anything somehow problematic about that in accordance with, no doubt, his Honour’s view that there were good reasons why having that – permitting those submissions – good reasons why those should be permitted.

It is a different thing, though, whether a judge necessarily accepts them and, of course, that is the same point here.  A judge is not bound and one factor a judge would take into account is whether or not, in the circumstances, there was reasons why the range that was being advanced by the Crown was something that the judge regarded as not entirely accurate.  That is the process and that is what happens in practice in many jurisdictions, and at the end of the day this applicant was operating in a system where a particular practice had been taken, was being adopted and he had, I submit, a legitimate expectation that the judge would be informed of and take into account the Crown range, and while I accept that the Crown range at the top was wrong, I submit that if the judge had been informed of what the bottom of the range was that might have influenced the outcome.

BELL J:   Just examining that for a moment.  A judge who sees a submission for this offence, positing a range starting below the maximum sentence, might not have confidence in the opinion that imported the whole range, surely, Mr Odgers.

MR ODGERS:   I just repeat what I have said, your Honour.

BELL J:   Yes.

MR ODGERS:   The key thing is the plea of guilty and the significance accorded to that.

BELL J:   The plea of guilty was reflected in the fact that your client got a non‑parole period.

MR ODGERS:   It is plainly a relevant consideration bearing on the head sentence as well, your Honour.  While it was open to her Honour, and so held by the Court of Appeal to be open to her Honour and not challenged here to take the view that it did not justify reducing below the maximum penalty, it was open to her Honour to take the view that it would justify a determinate period.  But, as I have sought to say, the primary focus of Mr Dunn in the sentencing was on the non‑parole period and, in my submission, if the judge had been told the Crown submits that a non‑parole

period of 24 years is open – maybe I live in a different world, but 24 years is still an enormously long period of time for a person to be locked up.

Considerations of specific deterrents would respectfully, I would submit, be met by such a sentence.  There would be very good reasons why such a non‑parole period would be open and that is all that I am submitting.  I suppose, I am submitting also that the fact remains that this Court could not be confident that, if the submissions had been permitted, that the judge would necessarily have sentenced as she did, at least in respect of the non‑parole period.

Your Honours, I think – paragraphs 8 and 9, I do not have anything really to add to those.  I would make the point that the judge was informed of Mr Zirilli’s sentence – sorry, the Crown range with respect to Mr Zirilli and she sentenced within that range.  It does not mean she would have done so with respect to Mr Barbaro but, with respect, the possibility that she might have cannot be excluded.

FRENCH CJ:   Yes, thank you, Mr Odgers.

MR ODGERS:   Thank you, your Honours.

FRENCH CJ:   Yes, Mr Walmsley.

MR WALMSLEY:   Thank you, your Honour, and might I indicate my personal gratitude to my learned friend for taking the argument first in circumstances where I am a very late replacement for previous counsel.  I am indebted to my learned friend in that regard, and it probably has had some utility in the sense that at least some of the matters that have been raised now no longer require repetition.  No doubt everyone is pleased to hear that, having regard to the time.

Seeking, as we have, to distil as simply as we can that which we seek to identify as the fundamental proposition that we put, we perhaps raise matters that are not in contention, and that is that the prosecution submission as to the appropriate sentencing range, which has been the subject of close analysis here, was and did form part of a plea agreement in the way that term has been commonly enough identified and ought to have been carefully considered by the sentencing court in that context, and at the very least have been seen to have been by her Honour as a material consideration in the necessary assessment by her of a whole host of things that were clearly relevant to her disposition which included such things as the factual circumstances of the offending and the applicant’s particular role in it.

There is a relationship here between Mr Zirilli and Mr Barbaro in that regard, simply identified in numerical terms and accepted by her Honour as a consequence of him playing a lesser role.  We do not stand discretely separate for all purposes to that which your Honours have heard from my learned friends because an ultimate disposition of the Barbaro appeal might have a residual impact on that which applies to our client.

KIEFEL J:   Do you have to rely upon the effects in the Barbaro appeal because the sentence in your case was within range?

MR WALMSLEY:   I do not do so for that reason.  I merely rely upon the submissions in the Barbaro appeal in the hopeful expectations that they might find favour, and accordingly have the matter in due course remitted elsewhere for further consideration ‑ ‑ ‑

KIEFEL J:   But the two distinctions between the applications here are that there were submissions made by Mr Croucher for the defence despite her Honour’s ruling ‑ ‑ ‑

MR WALMSLEY:   Robust submissions.

KIEFEL J:   Well, I think, as her Honour said, you will tell me anyway, you are obviously going to, and he did refer to the Crown range, and her Honour sentenced relatively within that range, did she not?

MR WALMSLEY:   Well, except not quite, as your Honour’s were just told.  It is not quite exactly within the range for both purposes, that is, head sentence and minimum prior to eligibility.

KIEFEL J:   But what point does yours come down to?  It is not procedural fairness.  Is it, as in your outline, paragraph 8, the last line, a refusal to use the range in its exact terms as was handed up?  Is that what you have to come down to?

MR WALMSLEY:   Well, yes – the typical lawyers yes and no, your Honour.  It is perhaps both of those things.  We say that because – we say two things.  It is clear from a superficial analysis of the plea hearing that her Honour bounced the ball very early and was making herself clearly understood to be not at all interested in that which she perceived first through a document tendered by Mr Dunn on behalf of Mr Barbaro, and then in dialogue with the learned Crown Prosecutor.  She made it perfectly clear that she was not going to ask for anything of the kind that we are here discussing, a prosecutorial range on sentence, nor did she see it as being relevant and if it did happen to percolate to the surface she would ignore it.

She made that clear to the prosecutor, to Mr Dunn and, indeed, to Mr Croucher, and when Mr Croucher stood up in the way that your Honour has identified here, it was in the context of the – I think it is exhibit 3 or 5, the bundle of documents that includes the two letters touching Mr Barbaro, being before the court and having a projected range which was being ignored pertinent to Mr Barbaro, that Mr Croucher completed the equation, if you like, on behalf of his client after her Honour made it clear that he could make any submissions that he liked in the context that she had predetermined to ignore them anyway, that he then indicated that which your Honour draws to my attention at 217 and thereabouts in the book, being the range of 21 to 25 on the head sentence and 16 to 19, and we can see that that compared by mere comparison to that which her Honour determined 26 down to 18.

KIEFEL J:   But what is the essential point, Mr Walmsley; that her Honour refused to use the range?

MR WALMSLEY:   No, your Honour ‑ ‑ ‑

KIEFEL J:   That one may infer from what her Honour said about relevance that her Honour refused to use the range.

MR WALMSLEY:   Yes, use it in the sense of accept its place in the proceedings as material appropriate for her to give serious consideration to in coming to the decisions that are clearly hers, that is, what the appropriate sentence ought to be in each instance.  It is that sense of use and, your Honours ‑ ‑ ‑

FRENCH CJ:   What is the relevant consideration that obviously must be found somewhere in the statutory discretion that she exercises?  What is the relevant consideration?  It is not “the range”.  It can only be somebody’s opinion or submission as to a range.

MR WALMSLEY:   Yes, but it is in this context, your Honour.  The Crown in the proceedings is in a preferred circumstance that was commonly enough, for other reasons, deferred to by her Honour.  That is, it was made perfectly obvious that her Honour respected the enormous involvement by counsel prosecuting in this and other related cases in a massively complex numerically numerous case of witnesses, documents and the like and that in distilling that for her purposes they had, helpfully, created a summary that ran to 135 pages which became the facts.

It is in that context that what we were seeking to do was to have her Honour consider that a prosecution submission on appropriate range is there to be appropriately and properly considered in this broader context of it being part of a plea agreement which included other circumstances so that her Honour when dealing simplistically with the issue that Mr Zirilli had pleaded guilty, for example, would look at the charges to which he had pleaded guilty, appreciate at once that it was the Crown who had crafted those charges, as is the Crown’s responsibility, as his Honour Justice Hayne pointed out in GAS, the first point there is that it is the Crown alone that are charged with that task and had engaged in correspondence negotiation with the parties, and separately Barbaro to Zirilli, to achieve a plea of guilty.

The plea of guilty is relevant for a number of circumstances, not the least being that it generates a likely discount for that circumstance when it comes to final disposition.  The range is inextricably bound to that process and significantly one can observe that – and this has been discussed already and I will not repeat it ad nauseam – that at some stage or other – not for Mr Barbaro but for Mr Zirilli – he had to consider before he determined his course what the charges were and no doubt taking private advice what the likely disposition would be and to be informed by the prosecuting authority charged with a duty of assembling this massive material and crafting it into charges what they perceived to be an appropriate likely disposition.  And so it is in that context that he pleads guilty and the proceedings in due course are heard and determined.

That is really its relevance.  It is clear that her Honour ‑ and with no disrespect to her Honour at all – was in a blinkered sense looking at MacNeil‑Brown from the point of view commonly enough raised in these processes of I haven’t asked for it and accordingly I don’t want it.  The Court of Criminal Appeal has told me that that is one of the questions that needs to be addressed and otherwise and, indeed, later in dialogue with Mr Croucher, where she accurately identified the she had not addressed or opined any minimum term for Mr Zirilli, said you cannot even – “I reject any suggestion that the second question in MacNeil‑Brown arises because you can hardly contemplate rationally an appealable error when you have no idea what I am going to do” and she said as much. 

There was this entire focus that percolated throughout the whole proceedings that dealt simplistically with the MacNeil‑Brown point and, as our first paragraph suggests, our fundamental proposition puts it in a more appropriate context and in the second paragraph where we rely upon Ahmad, GAS and Mokbel, both before his Honour Justice Whelan and, indeed, to a small degree on appeal, it really is so as to give voice, identify if you like, several pertinent examples of this process of hearing and determining a sentence in a particular case, in the broader context of the tribunal having before it these sorts of things.

It is interesting to note, although it is a minor point only, that in the matter of Ahmad, your Honours will recall that the issue of what in that case went well beyond a Crown proposition as to appropriate range and became a distilled agreement between the prosecutor and the accused’s counsel, to suggest a minimum term of four to five years which was fairly narrow, it then, if you like, to use the term from a book, “Bring on the empty horses” became the cry.  Everyone in the court, from the judge to the two parties, were openly talking about that notion and his Honour, very, one can infer, and certainly can easily readily infer from his determinations and the language that he used, was having none of it, and that is part of the task and function that is identified in GAS. 

The third point that has been mentioned several times already, it is for the court to determine the sentence and his Honour did that in a robust way but then mindful of something I do not wish to elevate to a significant principle of law, but it is an interesting point to identify, your Honours might recall that when determining the ratio between the head sentence and the eligibility of parole sentence, his Honour, dealing with New South Wales legislation, was grappling with special circumstances as to whether there should be a departure from the usual ratio and determined at one stage that he was not going to do so but then observed that in reality here, the responsible prosecuting body had come up with a proposition which - I agree with my learned friends - amounts to a submission at law, that a particular sentence should be imposed and that in those circumstances his Honour spared a moment for the accused in the consideration that, well what does the person exposed necessarily to this process, as part of the process that gets him before the court, having achieved the useful utilitarian end result of pleading guilty, what does he do when he sees that the court disagrees with the Crown, and even expresses it in terms of disappointment.

It is a small point, but I suppose all it does is identify in a human sense that if there are processes such as these that appear here and in Ahmad and in GAS and in Mokbel a set of circumstances pertaining to a particular case that involves the thrust and parry of a plea bargaining that leads to a plea agreement then, in those circumstances, it is at least appropriate for the Tribunal to be apprised of the circumstances there pertaining, and to either be persuaded by some or part or all of it, or not, in the sentencing exercise that is then undertaken.  That has been missed here and it is submitted that it should not have been.

GAGELER J:   You were there making submissions in relation to the holding in Ahmad, as I understand it.  In paragraph 23 of that judgment, the second sentence, it is said that:

The agreement can neither bind the judge nor be given any greater weight than is appropriate to a submission of counsel –

Do you accept that?

MR WALMSLEY:   I am sorry, your Honour, I ‑ ‑ ‑

GAGELER J:   I am just taking the proposition that emerges from Ahmad itself.

MR WALMSLEY:   It is at paragraph 23?

GAGELER J:   The second sentence.

MR WALMSLEY:   Yes –

The agreement can neither bind the judge nor be given any greater weight than is appropriate to a submission of counsel with knowledge of the facts relevant to the offence and the offender.

Yes, your Honour, but that is the completed, desirable process, there explained.  We say that that did not occur here.  We were “cut off at the knees”, to use a vulgar colloquialism, and so cannot even gain the appropriate observed commentary as to that engaged process.  That is altogether proper and it is raised in Ahmad and it is raised in the other ones that are mentioned and without exception. 

Even in this Court’s treatment of GAS, which of course was fulsomely adopted in Ahmad as well, the court, if I could take myself to it – the points that were there considered, even though the court emphatically and simplistically, as his Honour Justice Hayne has indicated, leaves no bargaining space here.  The first proposition is the prosecutor alone has the responsibility of deciding the charges, the second being the accused alone must decide whether to plead guilty, and the third being that the sentencing judge alone is to decide the sentence to be imposed. 

But it is within, we would argue, that third point within an appropriate context of proper material being before the sentencing judge, so that when she or he alone decides the sentence, taking into account all of the matters that are not here in contention, he or she is fully informed of matters that ought to be properly before the court.

Here, these matters were not properly before the court.  There was this tortuous process of having, in an indirect way, a bundle of documents referred to, first, by her Honour, being the letters pertaining to Barbaro.  The Zirilli letters, although at one stage contemplated by Mr Croucher to be tendered, never found their way into the material.  It has been the subject, sufficiently in the respondent’s case and in their submissions at paragraph 9, with which do not quibble – perhaps, a slight additional aspect of that process.

In that context, your Honours, the plea hearing really got derailed by her Honour’s persistent and consistent reminder of where she was going and what she was not going to do.  One can easily read into the entirety of the plea hearing in the truncated submissions made, even by the learned Crown Prosecutor and certainly by Mr Dunn who decided to walk away from it fairly quickly and then, more robustly, Mr Croucher, it was this narrow look at MacNeil‑Brown was the focus forced upon the process by her Honour’s continuing and persistent concern for what she perceived to be people prevailing upon her in a way that she demanded that no such thing should occur. 

HAYNE J:   Could I take you to appeal book page 222?  Do I understand from the last half of that page that at the sentencing hearing the prosecutor provided a chart of sentences that had been imposed under Commonwealth law in respect of either the same or similar offences?

MR WALMSLEY:   Yes, that was provided in exhibit 9.

HAYNE J:   I do not think we have exhibit 9 reproduced in the appeal book.  It may be, I do not know, that it would desirable that we have exhibit 9, and perhaps after lunch if counsel for the respondent could, after providing counsel for the applicants with a copy of it, if there is no objection, make it available to the Court.

MR WALMSLEY:   Yes, I am sure that is easily achieved, your Honour.  Your Honours, I resisted temptation to engage in the dispute over the propriety in the circumstances of a range that excluded life for Mr Barbaro.  I only mention it in passing for the reasons that I mentioned before, that we feel as if we are inextricably connected to the Barbaro appeal in that regard.

Bearing in mind that it is submitted that this Court ought to look at the proposed range for both Mr Barbaro per courtesy of the correspondence and concessions and failure to adjust otherwise by the Crown, and for Mr Zirilli per courtesy of the robust submissions of Mr Croucher that were not quibbled with, it is submitted that in regard to the Barbaro matter the range offered is not a range that this Court ought to consider was postured in a, shall I call it a used car salesman’s attempts to achieve a bargain, in other words, less than a reality so as to achieve a result and that this Court can properly accept that when the ranges for each of Mr Barbaro and Mr Zirilli were confirmed to the respective legal representatives it had been after careful deliberation and in the context that in the result, taking into account all of the matters that were expected to be relevant to a final disposition on sentence, that those were the ranges.

We submit, in perhaps partial contradiction of my learned friends, that it was not an error for that resultant range to be less than life imprisonment even though one can always imagine in the intellectual exercise engaged in determining a range, a very, very serious offence, as your Honour Justice Bell clearly indicated and no one quibbles with, that might well raise that as a starting point but for the other reasons which included her Honour more than once indicating the very considerable significance of a plea of guilty and, indeed, Mr Croucher at one stage not being content with the noun felt the need to repeat the qualifying adjective “very” three times, “very, very, very significant” your Honours might recall, that ‑ ‑ ‑

HAYNE J:   Now, these matters were advanced on the plea by counsel for the Crown, were they not, at pages 231 to 232?

MR WALMSLEY:   Yes, they were, your Honour, but in the ‑ ‑ ‑

HAYNE J:   What more was to be said on these aspects of the matter than appears at 231 and 232?  At 231 we have a quite lengthy discussion of the consequence of plea, a plea in circumstances recognising that these men would receive sentences that would take them, counsel says, “well into their twilight years” and at 232, lines 6 and following, counsel for the Crown says that this represents:

probably the most significant of the relevant factors to be taken into account operating in mitigation.

. . . 

Of both the head sentences and indeed the minimum non parole.

MR WALMSLEY:   Yes.

HAYNE J:   What argument was denied to the applicant other than an argument that said here is the number?

MR WALMSLEY:   That argument, your Honour, and it is a relevant argument in this context because Mr Young said what he said and he said other things on this issue.  He is entitled to assist the court in the way he did but it ought to have been in the context of the court identifying and using, in the consideration sense, that which had been struck as a plea agreement on the same issue.  Her Honour was left with that which your Honour Justice Hayne has indicated and precious little else in circumstances where she has excluded from her considerations that which, we say, was the range proffered by the Crown as part of a plea agreement and she should not have excluded it.

KIEFEL J:   Justice Hayne has asked you what was to be advanced.  What was to be gained?  Was it that if regard was had to the numbers, that her Honour might have considered the lower range of the non‑parole period?  It is really the non‑parole period that is ‑ ‑ ‑

MR WALMSLEY:   Yes.  What Mr Young is saying there, as he is speaking in generalities, and no criticism in that regard, but when it came to a carefully considered, more particular, approach to disposition he had, historically, been party to a different determination.  One is before the court and the other one, as we are told by her Honour on 15 or 20 occasions, might have been uttered in open court but was not at all before her in a way that she understood that it was properly before her.  Of course, in a 35 page carefully articulated reasons for sentence, she did not mention any of these things at all, consistent with her approach.

FRENCH CJ:   That might be a convenient moment, Mr Walmsley.

MR WALMSLEY:   Yes.

FRENCH CJ:   The Court will adjourn until 2.15pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ:   Yes, Mr Walmsley.

MR WALMSLEY:   Thank you, your Honours.  On the matter that your Honour Justice Hayne raised just before we repaired for lunch, we do have copies of exhibit 9 and we are told that they have been distributed or are in the process of being distributed, and it excited in us, your Honour, a closer attention to that part of the transcript of the plea that your Honour referred us to.  I would have to concede that for the very first time, at page 221, when Mr Young was responding to the request of the sentencing judge, he raises sufficiently – although perhaps subject to typographical error – the fact that it has been compiled, at line 21, and a result of the evaluation of this case for, dare I say it, the Brown/Neal, as it is there referred to, ratio – which must be, of course, the MacNeil‑Brown ratio – “there had been compiled a listing of the biggest cases from the database of the CDPP”, and we do have that, your Honours.

That demonstrates, and is a good example, it is submitted, of just how ‑ without being critical of her Honour at all ‑ just how distorted this plea hearing process had become.  The prosecutor there is in trepidation of getting into the area that has so often been declared to be off limits in the use of the terms, dare I say it, but it raises this observation, your Honours ‑ ‑ ‑

HAYNE J:   On any Commonwealth sentencing I thought the Commonwealth DPP almost as a matter of course routinely produced a document not unlike that, in tabular form, which recorded what has been done since ‑ for some time, shall I say.

MR WALMSLEY:   Since the year dot.  Quite so, your Honour, and indeed, as her Honour observes a little later, it excites a recollection in her of such events and they are, of course, compiled as a continuum and constantly updated, but here we have the prosecutor conceding that he had been engaged in that particular process for at least partially the preparation of the prosecution range of sentence that was so declared to be off limits and it leads to this observation.

Her Honour there requested assistance, and proper assistance, from the prosecution and got it, but having got it of course her Honour in her Honour’s position is entitled to evaluate it herself, but in its complexities, as one can readily realise when one picks up the volume of papers, the next step might sensibly, in a non‑litigious sense be, well, thank you for that and what do you think?  Really, that is what we are here about, it is the answer to the question, what do you think?

GAGELER J:   What do you think or what do you submit?  They are different things.

MR WALMSLEY:   Yes, well, I have used lay terms in the analogy but it would be what you submit in the proper sense.  That is what her Honour would not go to.  She got the raw material and guillotined anything thereafter at the behest of the Crown.

BELL J:   Raw material enabled her to have regard to the pattern of sentencing for offences of this character.

MR WALMSLEY:   Yes.

BELL J:   Beyond that, it remains to be identified, at least for my part, Mr Walmsley, what use there lay in knowing the opinion of the prosecutor as to the sentencing outcome or range.

MR WALMSLEY:   Yes.  Well, your Honour, the use, it is submitted is as has already been partially stated.  In the complexities found elsewhere other than in this close focus on an opinion as to range of sentence involves the construction of the indictment, the actual charges to which a person might plead guilty, the fact that the person pleaded guilty in certain circumstances and that is information properly available to the court so as to have the complete picture relevantly as to the circumstances in which the accused pleaded guilty and which, we say, included – to their knowledge, that is - Mr Zirilli and Mr Barbaro, a comfortable thought which clearly might be expected to help lead to a plea of guilty that at least the Crown having considered it think this, and as someone has said already, “I can live with that” and we merely say that that is a process that should have been undertaken in the same way as the learned trial judge in Ahmad got confronted with a deal that was, in his view, totally out of kilter, told them as much and in due course ruled as much and found for those rulings support from the Court of Appeal even though the result might have been otherwise.  It is the comprehensive nature of that process that we say was truncated and improperly truncated and in the result led to a result that was unfair and it is that simple, your Honours.

Without taking much more time at all in seeking to tease out the basic point that we here seek to rely upon, your Honours will note that in our brief outline of oral submissions, we do seek to provide a closer careful analysis of the likely important impact of a provided sentencing range, and that is adumbrated in paragraphs 6 and 7 and, to some degree, 8, and that is that it is much more than a mere provision of numbers.  It is probably attended by a reasoned and detailed analysis of how these numbers were arrived at.  That the prosecutor in this case was uniquely placed to provide that reasoned position is not in dispute.

Then it goes into an analysis that really, in reality, the numerical range, that is reduced to numbers, and the prosecutor’s articulated pathway to that range leads naturally in a plea hearing to submissions that respond to that and suggest otherwise where a close analysis of this transcript of this plea hearing, one can see both Mr Dunn and Mr Croucher at various stages when seeking to articulate their approach to it being denied the ability to compare and contrast with the Crown’s approach argumentatively.  They are effectively being asked to hook the ball to the fine leg boundary with one arm tied behind their back. 

That is what is complained about here.  It is the process that was, it is submitted, unfairly truncated because of the learned sentencing judge’s, without being critical, myopic approach to figures and how they were dealt with by MacNeil-Brown, and she led herself into an unfortunate error in the directions that she gave that were at least partially complied with in the proceedings.

So it is in those terms, your Honours, we revert back to the fundamental proposition that is found in paragraph 1 and does not need to be repeated, that in the circumstances it never gets to the point of it being an assessment of the detail of the sentence being seen to be within or without range, or for other arguments that have failed and are not before the Court here, manifestly excess or otherwise.  It is a question of the process, not the result, being the subject of this appeal.  They are the matters that we seek to rely upon.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walmsley.  Yes, Mr Bromwich.

MR BROMWICH:   Your Honours, I will endeavour to be reasonably economical in what I have to say, and hopefully leave Mr Silbert with some time for what he has to say.  Can I just deal with some short housekeeping matters?  The submissions that we put in had the required annotations but they also had some typographical‑type corrections.  They are marked on them by way of underlining.  A letter was provided to the Registry indicating what those changes were but I think I have to have leave to file those submissions, so I seek that leave.

FRENCH CJ:   Yes, very well.

MR BROMWICH:   Secondly, in the exchange of submissions with Zirilli, paragraph 9 of our submissions sets out some email correspondence from the day before sentence.  I understand that it is not disputed that that email correspondence is correctly described in paragraph 9 of our submissions and if no issue is taken about that, my learned friend acknowledges that is correct, I need go no further with that.

The third point is, exhibit 9 from the sentence hearing is now before your Honours.  Can I just briefly – and very briefly – indicate a means of ascertaining quickly what each of the three schedules goes to?  The easiest way is simply to look at the footer.  The first of the documents indicates that is the comparator for matters in relation to trafficking.  The second indicates the comparator for matters in relation to attempt to possess.  The first of the colour ones indicates the cocaine matters and the second of the colour ones indicates the import ecstasy or MDMA.  It just assists a little bit if your Honours need to navigate.

I should make the observation, of course, that there are references to various County Court decisions and, of course, they are not comparatives in the proper sense of paragraph 56 of this Court’s decision in Hili which, of course, confines proper consideration to appellate court decisions.  But, with that qualification, that is the material that was before her Honour.

GAGELER J:   Can I just ask about paragraph 9 of your Zirilli submissions?

MR BROMWICH:   Certainly, your Honour.

GAGELER J:   Was that email correspondence before the Court of Appeal?

MR BROMWICH:   No, it was not, your Honour.  The reason we put that in is that the written submissions in this Court raised for the first time an assertion of agreement, an agreement that we, Crown, would make submissions of a MacNeil‑Brown‑type range and that was not correct and we wish to correct the record and that seemed to be the most economical way to address that.  The alternative for your Honours is to make objection to all the references to agreement in the submissions put in‑chief on behalf of Mr Zirilli.  So we were simply seeking to correct the position but I recognise that it is in the nature of fresh evidence.  We thought it the best way to meet what we were confronted with.

HAYNE J:   Just one matter, Mr Bromwich.  I do not think paragraph 56 of Hili suggests that a trial judge should not be provided with comparative sentences simply because they were imposed by a District Court or County Court.

MR BROMWICH:   Yes.

HAYNE J:   On the contrary, I would have thought that those were essential to the provision of any comparative sentences.  What Hili says is that Courts of Criminal Appeal exist so that they can achieve proper application of consistent principle, but I do not see any need for us to stay there and examine the point in any detail.  But I do not want the notion to gain a foot that somehow what the County and District Courts of this country do is irrelevant.  It is not.

MR BROMWICH:   Your Honour, I think what I am really directing to in that reference is that if there is a sufficient body of intermediate appeal decisions in a given area, the first sentence of paragraph 56 in Hili and Jones, if I might repeat it, says:

Consistency in federal sentencing is to be achieved through the work of the intermediate courts of appeal.

So it is not that the lesser court decisions are necessarily irrelevant.  It is just that if you have a sufficient body of appellate decisions ‑ ‑ ‑

HAYNE J:   No doubt about that.

MR BROMWICH:   ‑ ‑ ‑ we need not go to County Court or District C Court ‑ ‑ ‑

HAYNE J:   Yes, sure.

MR BROMWICH:   That is all I meant, your Honour.  In the drug area, there probably is a sufficient body by and large of intermediate appeal court decisions in the area, particularly when cases like De La Rosa, picked up by this Court in Hili, do set out some useful information about sentencing.  Of course, we also need to be inherently wary about bare numbers and the comments that this Court made in Hili about that as well. 

Your Honours, I propose to address on three broad topics and the first is that there was no agreement and no legitimate expectation that a Crown submission on range would be made if the court did not wish to receive it.  I will return to that.  Secondly, that ultimately there was no loss of opportunity by either applicant to make submissions about the Crown range before the sentencing court and the third, which I will come to first, concerns MacNeil‑Brown and that perhaps concerns, or takes matters somewhat further than what has been disclosed in the written submissions but is not inconsistent with the written submissions. 

Your Honours, if I could start in this way, Crown submissions on precise sentencing figures can be considered, perhaps conveniently, on a three point sliding scale.  The first in that is the Queensland model.  In Queensland it is a common practice to give a single head sentence and single non‑parole period which the Crown maintains or asserts or submits ought to be imposed in a given case.  The second approach is one which might be described as a pragmatic approach to MacNeil‑Brown and that is a range of what is considered the appropriate sentence to impose which may or may not, in a given case, constitute the outer limits and the third is a literal or expansive approach to MacNeil-Brown which does constitute a submission as to the outer limits. 

So if I turn to those three points, one at a time, Queensland of course, the situation in Queensland constitutes not a range at all.  It is plainly a submission as to what the Crown says the sentence should be in a particular case.  It is of course the easiest to disregard because it is the barest of submissions.  It encroaches least on the judicial function and it does not purport to constitute legal guidance on the metes and bounds of the sentencing discretion.  It is simply a submission as to what this case effectively deserves.

The second approach is the pragmatic approach to MacNeil‑Brown.  That is a range - and I should interrupt myself in that regard that MacNeil‑Brown, the decision itself has elements of a curate’s egg quality to it in the sense that as you read different parts and different paragraphs, one gets a slightly different impression of quite what the Court of Appeal was saying ought or ought not be said by the Crown if called upon to comment on a sentencing range.

I will not go through them in detail but the three paragraphs that warrant some potential focus in this regard are paragraphs 11, 42, 45 and 69 but the pragmatic approach, as I am submitting to your Honours, to the MacNeil‑Brown range, is a range as to what the Crown considers the sentence ought to fall within on the facts known to the Crown.  It is essentially a submission as to the appropriate sentence and the value to the defence and the value in the context of a plea negotiation is that the Crown in a practical sense is tying its hands both as to the submissions that will made at the sentence hearing that is forthcoming and of course, practically speaking, tying its hands on appeal unless what happens is shown to be wrong.

There is that Queensland case of Henderson that demonstrates that in extreme situations that can be departed from but in the great bulk of cases, the practical effect of the Crown indicating what it considers to be an appropriate sentence is that it is tying its hands and that is the value from a defence perspective because it gives you (a) some degree of certainty, and (b) it takes a component out of the sentencing process whether it is correctly legally described as such or not, but it takes out the adversarial aspect to that component.  The defence can go in to a sentencing process with a degree, only a degree of certainty, at least as to what is going to be said or might be said against you and makes the process a little easier to deal with, with an anxious client.

But this pragmatic approach of course is one that can still be disregarded.  It represents a safe ambit within which the Crown submits a sentencing discretion will lawfully be exercised on the facts known to it but it does not represent, necessarily ‑ it depends on the case – the outer limits, either upper or lower.  And, of course, in this case and the case of Barbaro the range included an assessment of remorse which was not shared by the sentencing judge and, accordingly, could not have been the Crown’s final position because of that different view taken by her Honour in the course of the sentencing hearing in relation to remorse and she took a view on that despite Crown submissions on that.

As I said, it does not necessarily represent the outer limits and I will come to it shortly but the point of making that submission is that it did not represent the outer limits in this case.  In my submission, on that pragmatic approach a Crown submission does not or should not include sentences which are thought to be inadequate or excessive, albeit not necessarily manifestly inadequate or manifestly excessive.

And, of course, it can constitute a degree of legal guidance as to the metes and bounds of the sentencing discretion but not necessarily, as I have said, the outer limits and we would submit that it does not in that way encroach unduly on the judicial function, although minds can legitimately differ about that.  The third step concerns the literal or expansive approach to MacNeil‑Brown.  That is taking quite literally what is said in various parts of MacNeil‑Brown and it is a submission on range that purports to be an approximation of the outer limits of the sentencing discretion.

The outer limits of the discretion in some cases may include sentences which the Crown would regard as being inadequate or excessive, but not manifestly so, amounting to appellable error.  Taken literally, then, MacNeil‑Brown may entail the Crown being required to make a submission that it is lawful to impose a sentence that it considers as actually inappropriate, it is just that is not appellably wrong.  It purports to constitute legal guidance as to the metes and bounds of the sentencing discretion, albeit with an approximation or indication as to those limits, and it may be seen, at least in some cases, to encroach or impact upon the judicial function, an area I will leave Mr Silbert to address the Court on further.

Bringing that three‑stage way of looking at this area to this current case and to the practice of the Melbourne office of the Commonwealth Director of Public Prosecutions, the Melbourne CDPP does not advance sentencing submissions that it considers includes either excessive or inadequate sentences, that is, it gives a range as to what the appropriate sentence will be and that is clear from the second page of the second letter at page 58 of the application book.  Turning to what actually happened in this case, it appears ‑ ‑ ‑

BELL J:   Before you do that, can I just take up with you this then clearly indicates that what is being placed before the Court is an opinion since the Melbourne CDPP has excluded sentences that he or she considers are either excessive or inadequate, albeit they have not been so determined by a court, so one has a substantial element of opinion coming into the formulation of a submission respecting the range.  What I am raising with you is the utility of that in comparison with equipping the judge, as was done in this case, with the primary material on which that opinion presumably is based, relating to comparable sentences that have been given.

MR BROMWICH:   In answering the question, your Honour, I, perhaps like your Honour, bring a New South Wales bias to bear in the sense that it is a very unfamiliar thing for those of us who practice in New South Wales.  But unavoidably in a situation like this, whether it is cast as being opinion or cast as being a submission which has got a lacing of opinion, it certainly has that broad character to it, and the question your Honour poses as to what the utility of it is – perhaps I take off an official hat and step back into the arena of my prior occupation, prosecuting and defending.

The main utility, to be blunt, is the utility which I identified earlier, and that is of the defence knowing where they stand.  The utility to the court varies according to the judge or court that you are before.  If you are before a highly experienced judge such as her Honour Justice King, it is of no utility whatsoever, and that was plainly her Honour’s view.  If you are dealing with a very inexperienced judge, a new judge or an unfamiliar area of practice, which is more commonly the case in some of the Commonwealth areas because we have a wide range of relatively smaller number cases, there may be some considerable utility in having some assistance as to where to go, simply because the alternative of going through your own instinctive synthesis process unaided is going to be very time consuming, and judges do not get a lot of time to do it.  Whether that satisfies the need for higher principle is another matter.

BELL J:   I am just seeking to understand how the judge is better placed, whether the judge is experienced or inexperienced, by being given a submission that eliminates the sentences that have been opposed and not successfully appealed in like cases, or broadly like cases, from the Crown submission.

MR BROMWICH:   It is a little like comparative sentencing ranges generally, your Honour, if I could make that observation.  I think it was paragraph 54 in Hili where the comments of Justice Simpson in De La Rosa were picked up, which said that any particular range is not necessarily the only range.  It is not necessarily the upper limit; it is not necessarily the lower limit.  You are providing a court with some indication of the approach they might take which might then save them some time as they go through the process, but it certainly starts to get troubling, if I could put it that way, and I anticipate that is where your Honour is coming from.  These are difficult matters, but there is also a practical aspect which is the courts, particularly the trial courts of this country, have very large case loads and they need the help on occasions.  But if a judge indicates, as Justice King did, that she needs no such assistance, from our point of view that is the end of the matter.

FRENCH CJ:   Mr Bromwich, what is the interaction, if any, of this debate with section 16A of the Crimes Act, setting out general sentencing principles and matters to which courts must have regard?

MR BROMWICH:   Section 16A has not been interpreted as being exhaustive.  That is the first point, because Al Kahani ‑ ‑ ‑

FRENCH CJ:   Has anybody referred to it along the way, by the way?  I notice there is a reference in the ‑ ‑ ‑

MR BROMWICH:   Section 16A was referred to in the submissions before her Honour, I think at page 233 ‑ ‑ ‑

FRENCH CJ:   I think in the Court of Appeal they referred to the Sentencing Act of Victoria.  It is 6AAA; that is a discount for the plea.

MR BROMWICH:   Yes, but I think that was referring to the approach of the State DPP to the MacNeil‑Brown area.

FRENCH CJ:   It made some reference to this in the context of the Barbaro Case.

MR BROMWICH:   Yes, but section 16A talks about the factors, non‑exhaustively as Al Kahani decided, that need to be taken into account, but it does not really, at least on its face, answer the question one way or the other as to sentencing ranges.  It certainly does not say exclude it, but then it does not include either.

BELL J:   I suppose it might come in under 16A(1) with that helpful injunction to impose a sentence of an order that is of a severity appropriate in all the circumstances.

MR BROMWICH:   That is the grab bag so perhaps that ‑ yes, your Honour, thank you.

FRENCH CJ:   Does that contemplate anything outside the discount that is provided for a plea and which is separately referred to?

MR BROMWICH:   A sentence appropriate in all the circumstances is an ambulatory provision, I suppose, designed to encourage you to try and get it right, but I am not sure it achieves much more beyond that.

HAYNE J:   But the provision of a range, if it has any purpose, is directed to the avoidance of fourth class House v The King error.

MR BROMWICH:   That is correct.

HAYNE J:   It can have no work to do whatever with respect to the specific forms of error in classes one to three of House v The King.

MR BROMWICH:   That is correct, your Honour.

HAYNE J:   It is, therefore, I wonder, standing things on their head to say that the judge does not need to be instructed by argument about the matters that should be taken into account, the matters that may not be taken into account in forming a sentence.  That is, the judge need not be instructed about the avoidance of classes one to three error and yet somehow you have got to supply the judge with an opinion formed in the context of some agreement that has been made out of court which is somehow seen as directed to the avoidance of that class of error which says that the result is so far out of kilter, some error must have been made.

MR BROMWICH:   Can I have two answers to that set of propositions, your Honour?  The first is that if you do give some sort of sentencing range, true it is only in the fourth class, but if you do give some sort of range and, particularly, a range of what is considered appropriate, it will, ultimately, have the effect whether it is entirely necessary.  In other words, it has a utilitarian component or value to it.  But, importantly – and this is softly put in our submissions and more forcefully put in Mr Silbert’s – we would prefer that it was not mandatory, that we did not have to do it.

We can see some utility in cases in being allowed to do it, but the greater value, going back to Justice Bell’s earlier questions, the greater value is in letting the defence know where we stand.  This case had – I will come to it shortly – some important elements of pragmatism associated with it.  I cannot gainsay the substance of what your Honour is putting.  It is a little odd to have this put in a different class to the other categories in House v The King.

HAYNE J:   Especially in the case where you say it has its chief utilitarian value in the case of the inexperienced judge.

MR BROMWICH:   Indeed.  As I say, it has been an educative process for me as well, your Honours.  What I wanted to say then in relation to this matter and in terms of the pragmatic approach which may not be of great interest but I will just deal with it quickly, is that it appears to have been understood by counsel appearing for both of the applicants at the sentence that this range was a pragmatic version rather than an outer limits version.

That appears to be the approach taken by Barbaro’s counsel at the sentence hearing and apparently accepting that a head sentence of life imprisonment was open, albeit he was arguing against it, but he was certainly effectively conceding that it was open because nowhere does he say that was not open, that was not available, you would be falling into appellable error or anything of that kind.

He substantially argued for a determinate non‑parole period and there are references to that.  I might just list them rather than go to them in detail - in the application book at pages 113 to 114, 123, 125, 126, 128, 147 where there is a reference to a “heated disagreement” but not an error of principle, and 179.  All of those constituted arguments about what the learned judge should do, not what she had to do.  So it was accepted that you could argue outside of, beyond and differently from ranges generally.

It is starker in the case of Zirilli’s counsel on the sentence hearing because he overtly did not treat the Crown range as the outer limits and in fact sought to go outside of that range.  I will take your Honours briefly to page 217 in the application book.  At the bottom of page 217 Mr Croucher said:

They have told us their submission is that it’s worth between 21‑25 years on the top.  It’s between 16 and 19 years on the bottom.

He goes on to say:

is sensible and is open.  My submission to you is that you should go to the bottom of that range, that a sentence in the order of 21 years’ imprisonment would be appropriate –

You should have an even –

shorter non parole period –

and so on.  It is not that this was being treated as an outer limits range, in any event, to the extent that it was addressed.  What this really comes to, your Honours, is, if I could ‑ ‑ ‑

HAYNE J:   In Mr Barbaro’s case the trial judge had expressly said to counsel at the plea that she was looking at life as a possible head sentence.

MR BROMWICH:   That is right.  If Mr Barbaro’s counsel had considered that the range that the Crown was putting up, the top of which was 37 years, was the legally permissible outer limits then you would have expected the submission to have been, “Your Honour cannot impose life.  That is appellable error.  It is beyond the limit that you can go.  The top or the highest you can go is 37 years.”  No such submission was made and that was a tacit recognition that what the Crown was putting up was what was appropriate, it was in the context of a plea negotiation, it did not constitute the outer limits.

If I could respectfully indicate some comments that were made in the course of my learned friend, Mr Odgers’ submissions, where the Chief Justice said the Crown would be indicating a range of X to Y which would be less than the outer limit range of X to Z and that would be essentially in the nature of the compromise that was arrived at, with respect, your Honour the Chief Justice has nailed it.  That is exactly the point.  I think in a similar fashion Justice Kiefel a short time later asked the rhetorical ‑ ‑ ‑

FRENCH CJ:   Kiefel.

MR BROMWICH:   I keep getting it wrong, I am sorry.  My silent “w” in Bromwich gets pronounced all the time as well, I apologise, your Honour.  Justice Kiefel a short time later asked the rhetorical question, well why would the prosecution indicate the appealable level.  Why would they - what is the utility of that and the short word in answer to that is precisely, why would you?  It is part of a negotiation.  You are trying to indicate what you are saying is appropriate.  To simply say, well these are the full range is not going to be much use to anyone.  It is not going to assist in a plea negotiation process.

BELL J:   Can I just take up with you again the section 16A considerations?

MR BROMWICH:   Yes, your Honour.

BELL J:   In light of your last submission which, as I understand it, is that the range that the Crown proposed in the case of Mr Barbaro was not a submission as to the appropriate range in law as distinct from a range that the Crown could live with, taking into account pragmatic considerations which you have indicated you intend to address on shortly, now ‑ ‑ ‑

MR BROMWICH:   There is a component - if I could interrupt your Honour - there is a component that is missing within that because necessarily by giving that range, you are also saying that such a sentence within that range will also be free of error.

BELL J:   I appreciate that ‑ ‑ ‑

MR BROMWICH:   It is necessarily part and parcel – I am sorry, your Honour.

BELL J:   My question is directing attention to the judge’s task, which is to sentence in accordance with the provisions of the Crimes Act, one sees the pragmatic considerations that I think you are going to take us to in a little time, perhaps partly reflected in the capacity to take into account the circumstance that the person has pleaded guilty and considerations of the facilitation of the course of justice that have been dealt with earlier by this Court, but where is there the capacity to take into account a range proposed by the DPP because the DPP considers that in addition to whatever discount is given, taking into account the willingness to facilitate the course of justice and in the light of 16A(2G) relating to the plea of guilty, where is the capacity to take into account under the statute, the considerations of ‑ ‑ ‑

MR BROMWICH:   In a way, even as your Honour asks the question, you have enlivened in my mind a sense in which section 16A may have more work to do than I perhaps first thought because the reference in section 16A as to a sentence that is appropriate in all the circumstances, it is not a reference to a sentence that is without appealable error. 

Now, if a MacNeil‑Brown range in the literal sense was given, which represents the metes and bounds, it would extend not just to an appropriate sentence, it would also extend to a sentence potentially that is excessive but not manifestly so, and that is inadequate but not manifestly so, that is, the full MacNeil‑Brown range, at least in some cases, can encompass not just an appropriate sentence but beyond appropriate, falling short of appealable error so that the submission that is made here is one that is referring to an appropriate sentencing range in line with section 16A.

BELL J:   I do not think that really answers my question, which is directed to the consideration that – I will come back a step.  The Court is being invited to conclude that a sentencing judge ought give serious consideration to a range proposed by the Crown, being not a range designed to inform the court of the metes and bounds in the Crown’s estimate of the sentencing discretion, but a more confined range that the Crown has negotiated in a bargain with the accused and, if the judge is to give serious consideration to that, it is with a view perhaps to modifying the sentence the judge would otherwise apply, taking into account all the considerations that section 16A(2) directs the Court’s attention to.  I am just wondering where, in the statute, one gets that.

MR BROMWICH:   I do not think, to the full extent that your Honour asks the question, you do get it from the statute.  What you do get from the statute though is a reference to a sentence that is appropriate in all the circumstances and, in a sense, the full sense of the MacNeil‑Brown range involves making a submission which can at least in some cases incorporate a sentence which, although not appealably wrong, is beyond that which is appropriate.  In a sense, the pragmatic approach to MacNeil‑Brown, remembering that the Melbourne office operates within the State law that is picked up and applied there, the pragmatic approach at least better aligns to the requirements of section 16A than MacNeil‑Brown itself does.

BELL J:   The appropriate sentence is the sentence that, taking into account all the considerations that the sentencing judge is required to take into account, is the sentence that is imposed presuming that it falls within the range of discretion for the given offence.

MR BROMWICH:   That is correct, your Honour, but that does not – perhaps I can answer this to an extent by looking at the practical aspects of this case, and the practical aspects include just who we were dealing with here in this particular sentence.  It needs to be remembered, for example, that Mr Barbaro at the time of his arrest, and the sentence was to be backdated to that time, was 48 years of age.  The range that was offered of 32 to 37 years was one that would result in a head sentence expiring between the ages of 80 and 85 years.  The non‑parole period of 24 to 28 years, again added to the 48 years, results in a non‑parole period of between 72 and 76 years of age. 

Of course, as we know, the end result was that the actual head sentence was life rather than 80 to 85 years, and the non‑parole period was 30 years, in other words, 78 years of age instead of somewhere between 72 and 76 years of age.  The gulf there for between what was imposed and what was in that range is not as great as it first seems, unless Mr Barbaro has a much longer life than 85 years ‑ ‑ ‑

BELL J:   It may not be, but it is why the opinion of the DPP struck in a bargain is inserted into the determination of the appropriate sentence.

MR BROMWICH:   I should not be understood here, your Honour, to be defending MacNeil‑Brown at all.  I am simply dealing with what it was that we had and how we dealt with it and to correct some impressions that had been left as to what actually happened in relation to these particular proceedings.  As I said, apart from Queensland which has the single number indication, Victoria is the only part of the country which has this formalised range system in place, it just does not exist anywhere else and I do not see signs that the system is falling apart elsewhere in the Commonwealth.

GAGELER J:   I do not quite understand your submission about the pragmatic range.  Are you saying the pragmatic range itself is a consideration to be taken into account by the sentencing judge or are you saying that it can be a guide to the sentencing judge’s consideration of the section 16A(2) factors?

MR BROMWICH:   I am not sure I am fully grasping your Honour’s question but I will do my best.  The aspect of age and other matters of that kind were plainly before the Court.  There were discussions in the submissions made in relation to both of the applicants about their age and what age they would be.  There were references earlier picked up about them being in their twilight years no matter what.  The judge could not have failed to have been acutely aware of the impact the sentence would have on these two men and the fact that they would be spending the great bulk of the balance of their lives in custody.  So I do not think that was, in any sense, not appreciated.  What the Crown was dealing with in providing the range was coming up with something that it considered would arrive at an appropriate sentence.  It necessarily was something that he did not consider was inherently inappropriate, but that does not mean that the Crown regarded life as being wrong and, certainly, the Crown does not say life was wrong and did not say so in the Court of Appeal.

It simply was saying that if the Court was minded to sentence, for example, with a head sentence for Mr Barbaro of 37 years, that would not be wrong either and that would not be wrong either because that would see him to the age of 85, in any event, which in a practical sense is not very different from life.  I do not know that I have answered your Honour’s question, but if I have not, I do not mind getting another one.

HAYNE J:   Can I try to pare it back to the most basic proposition?

MR BROMWICH:   Yes, your Honour.

HAYNE J:   Prosecutors do not impose sentences.

MR BROMWICH:   Indeed.

HAYNE J:   Prosecutors cannot agree sentences.

MR BROMWICH:   Well, cannot or should not, is that your Honour’s question?

HAYNE J:   Cannot.

MR BROMWICH:   We cannot in the sense of the imposition; no, of course not.

HAYNE J:   And cannot agree them.  You can have whatever agreement you like with an accused person standing for sentence ‑ ‑ ‑

MR BROMWICH:   That is right; it is up to the judge.

HAYNE J:   It is of no relevance at all, is it?

MR BROMWICH:   And GAS makes that clear.

HAYNE J:   Yes.

MR BROMWICH:   ..... cavil with it ‑ ‑ ‑

HAYNE J:   It is ultimately the judge that has the responsibility.

MR BROMWICH:   Yes.

HAYNE J:   The sole responsibility to pass sentence.

MR BROMWICH:   That is made even clearer in that Henderson Case, your Honour.

HAYNE J:   What does it matter to that process whether a prosecutor has had an exchange of opinions with the representatives of the accused about what they think might be the outcome?

MR BROMWICH:   In point of legal principle, not at all.  I cannot go beyond that, your Honour.  I think that is the answer your Honour is looking for.

KIEFEL J:   Or, indeed, in terms of logical persuasion.  What could possibly be its utility if it is not obvious how range was arrived at?

MR BROMWICH:   And that goes back to the Hili and Jones reasoning as well.  I cannot gainsay in that either.  I mean, it is an unpalatable reality – the pragmatism is an unpalatable reality and perhaps not something the Court wants to hear, but in this case we had 33 defendants, a brief that was over 300 lever arch folders, we were facing a three month trial and a measure of pragmatism came into this because the difference between life, for example, and 37 years was not substantial and certainly did not constitute, from our point of view, the possibility of error.  Now, that may not be something that should happen and this Court, of course, may rule that but that is the candid pragmatic framework that we were dealing with.

BELL J:   I suppose another pragmatic consideration might be that among those 33 persons facing charges was one bit of advice that was certain and that was a plea of guilty would be reflected in all but the worst case in a substantial reduction in the sentence that would otherwise apply.

MR BROMWICH:   The guilty plea was undoubtedly the most important thing here and everyone agreed that and it could not otherwise be, save perhaps, in second place might have been remorse but her Honour found none.  Your Honours, it may be that in light of the questions that have come from the Bench there is not a lot of utility in going into the absence of agreement and lack of legitimate expectation or the no loss of ultimate opportunity to make submissions about the Crown range before the sentencing court.

I might just make a few subsidiary points around that.  The case for Barbaro in reply now concedes there was no agreement to make the submission unless the MacNeil‑Brown obligations arose.  Before this Court in reply Barbaro now says the second limb was triggered, that is, the Crown should have perceived a significant risk of error regarding the applicable range if the submission was not made.

To make it clear, such a risk was not perceived then.  It was not advanced at the sentence hearing by the applicant, it was not advanced in his written submissions in the Court of Appeal and it was not realised in the final result.  There was, therefore, no legitimate expectation that the Crown would make any sentencing range submission and in a sense the comments falling from the Court today factually arise in a situation where that, of course, never in fact happened and the Crown did not make any such submission.

And we say, of course, that there was no denial of procedural fairness in those circumstances and there was nothing more for the Crown to say, had they been called upon, other than the numbers and the range.  Similarly, for Mr Zirilli, the email correspondence on the day before the sentence hearing made it explicit that no Crown would be submitted without the sentencing court wishing to hear it and again there was no legitimate expectation.  I do not think I need to say anything more on the absence of loss of opportunity.

We say plainly enough Mr Zirilli was able to make submissions.  Counsel for Mr Barbaro made some further submissions after Mr Zirilli’s counsel had finished and there was nothing stopping him from similarly going ahead and ultimately her Honour did receive the submissions from Mr Zirilli and there is no reason to think he would not have done so in the case of Mr Barbaro had he been pressed.

There were a number of matters that occurred, and I might just briefly address those.  In the session before lunch, there were some references to the second limb of MacNeil‑Brown, and I think there were some references to that being triggered in circumstances where the court may fall into error.  I just wanted to mention paragraph 3 of MacNeil‑Brown as picked up in paragraph 6 of our submissions for Barbaro and paragraph 18 of our submissions for Zirilli casts that slightly differently and more in line with MacNeil‑Brown.  Nothing much turns on it.

As to the plea agreement as to range, just to take that one step further because there were some comments before the luncheon adjournment, there was never an agreement as to range.  The parties did not agree about range.  There was simply a unilateral indication of what the Crown would say are called upon, and that was not put in any sort of negotiable way. 

So respectfully, I think your Honour the Chief Justice referred to an agreement regarding range.  Justice Kiefel referred to agreement between the parties, and I think Justice Gageler referred to bargain.  None of those things were features of what happened here.  There was no such agreement as to range.  There was simply a statement of what would be said if the Crown was called upon.

FRENCH CJ:   I think I characterised in exchange with Mr Odgers as a statement by the Crown about what its position would be, and a response that I put colloquially as “I can live with that”, which may or may not be agreement.

MR BROMWICH:   We are simply making the point that if there be any doubt about that, that was not something that was an agreement per se ‑ ‑ ‑

GAGELER J:   I think I was reacting to the word “offer” in your letter.

MR BROMWICH:   We are letting the civil law creep in a little too readily here.  It is an offer in the sense of an offer that, if you plead to this, this is what we would be prepared to say.  It is not a bargain or an agreement in that sense.  There was a reference of a suggestion that the Crown would not object to the defence raising the Crown range.  The reality is that there was not any such agreement.  The Crown was entirely silent about that.  The Crown never contemplated that, but of course when it happened, there was no objection to that.

The Crown oral submissions addressing mitigation went beyond the guilty plea.  I think Justice Hayne referred to pages 231 to 232, but if you read the pages following that, there were also fairly extensive submissions about remorse and rehabilitation, albeit that remorse was not accepted by her Honour, and I think my learned friend, Mr Walmsley, made a comment just before lunch that Mr Croucher’s submissions for Mr Zirilli were not quibbled with by the Crown.  That is incorrect.  The Crown disagreed with what was being said about the gap in the non-parole period, and that was at application book pages 238 and 239.  They were the only things I just wanted to finish off on.  Unless there is anything further to assist the Court, those are my submissions.  Thank you, your Honours.

FRENCH CJ:   Yes, thank you, Mr Bromwich.  Mr Silbert.

MR SILBERT:   If the Court pleases, I can be fairly brief.  This dispute is one of the inevitable consequences of MacNeil‑Brown, and one of the many disputes that arise on a daily basis in Victoria where sentencing ranges are being given, and there are at least between 15 and 20 a day being given in Victoria. 

Now, the Victorian Director has no interest whatever in the controversy between the applicant and the Crown.  The controversy is premised on this practice of MacNeil‑Brown whereby the Crown is forced to make the sentencing range.  I might just grab the ball while it is in the air from Justice Hayne and say it is completely agreed that prosecutors do not sentence, prosecutors do not agree sentence, and the judge has the sole responsibility of the sentencing, and with Justice Kiefel that there is in that situation little or no utility in the opinion of a prosecutor as to what an appropriate sentence is.

So what has occurred effectively is that MacNeil‑Brown has spawned a system of plea bargaining, if you like, that has become rather opaque.  It is totally opaque and it is submitted that indeed if we are to have plea bargaining, it should at least be transparent so that it is on the table for all to see. 

So far as Western Australia, South Australia, New South Wales and the two Territories are concerned, they have lived quite comfortably with the traditional practice, without MacNeil‑Brown, and my friend, Mr Odgers, and indeed, Mr Walmsley, are really speaking in code for saying that they want the judge to be bound by a range that is submitted.  Effectively what they do seek is that the range binds the judge so that on an appeal situation, the range can be trotted out and used in order to appeal the sentence.  Sub silentio, as I say, it is an attempt to bind the judge.

Now, we have handed around a summary of the intervener’s submissions and I do not know that there is a great deal of point in going through them.  I think they have been canvassed fairly comprehensively and indeed the intervener’s amended submissions have been canvassed comprehensively and the criticisms of MacNeil‑Brown raised at 5.54 of the intervener’s amended submissions are laid out.  I do not know that there is any point in reiterating them at this stage.

FRENCH CJ:   MacNeil‑Brown concerned a State offence I think, did it not?

MR SILBERT:   Yes, it did.

FRENCH CJ:   The application of the State Sentencing Act?

MR SILBERT:   Yes, it did.

FRENCH CJ:   What, if any, impact do the provisions of the Crimes Act in relation to sentencing have in this context and particularly section 16A, of course?

MR SILBERT:   Section 16A of the Crimes Act, well, unless there is a warrant at common law effectively for the quoting of a range, there is no statutory warrant there and that is effectively set out in 5.54 of the intervener’s amended submissions.  There is no statutory mandate.  Short of there being a common law warrant under section 16A there appears to be no mandate whatever in statute and no justification whatever for the practice that has now developed.

KIEFEL J:   A range put by way of submission would not be a circumstance for the purpose of 16A.

MR SILBERT:   No, your Honour, and MacNeil‑Brown seems to go out of its way to say it is a submission of law.  It is difficult, in our submission, to say how it is a submission of law.  The submission of law flows from the objective facts and circumstances of the offence and from the subjective facts relating to the offender.  From there, there comes a submission of law to be drawn by the judge as to what an appropriate sentence is.  Now, jumping in before that stage and saying here is a submission of law, here is a range, in our submission perverts logic effectively.  It jumps the gun and seeks to convert into a submission of law something that really is not a submission of law.  It cannot be a submission of law.  The submission of law has to relate to facts as established and law before the judge.

It is an opinion of a prosecutor as to what the appropriate sentence is.  If one looks at the two roles – and I think this was raised by Mr Odgers – of the two sets of counsel, defence counsel have an ethical obligation to secure the lowest possible sentence for their client.  The Crown has an ethical obligation to attain an appropriate sentence, not the highest possible sentence, an appropriate sentence on behalf of the community.  So both ends of the Bar table actually have different objectives insofar as what they are seeking to do in a plea hearing is concerned.  They are not coincident, they are not on the same page and they have different ethical obligations.

GAGELER J:   An ethical obligation to ensure an appropriate sentence, but not an obligation to assist the court to arrive at an appropriate sentence.

MR SILBERT:   I adopt that, your Honour, and clearly the common law has sanctioned the obligation on a prosecutor to assist the court to attain an appropriate sentence.  That phrases it more elegantly than I did and certainly that is a prosecutor’s obligation.  There is no question about that.  If one goes back to Casey & Wells that really governed Victorian sentencing law prior to MacNeil‑Brown that was how it was framed.

We may have perhaps overstated Casey & Wells in our outline of submissions in that basically the obligation on the prosecutor was to make a submission as to what sort of sentence.  They did not descend into figures.  Casey & Wells was an unusual case in that it involved a drug that was then a new drug, named ephedrine, so the judge dealing with it had no experience in it and there was more assistance sought by the court in order to reach an appropriate sentence. 

So the obligation of the prosecutor is certainly to assist the court in reaching an appropriate sentence, but it is for the court to sentence, not for the prosecutor to sentence.  The prosecutor’s opinion, in our submission, is entirely irrelevant to the exercise.

BELL J:   When you talk of the prosecutor’s duty at common law to assist the court to arrive at an appropriate sentence, one can look at how practice has changed over time, I think, in a number of jurisdictions.

MR SILBERT:   Yes.

BELL J:   I am not sure that it would be right to say that there was any practice amounting to discharge of that obligation to speak in terms of a range of figures as distinct from a submission about the form of the sentence or a submission directed to drawing to the court’s attention similar cases.

MR SILBERT:   Yes, your Honour, and I, with respect, adopt that and agree with exactly what your Honour has said.

HAYNE J:   It may be observed in Casey & Wells 20 A Crim R, particularly at 196, the Full Court then said – speaking in 1986, so quite some time ago:

we do not think it appropriate for counsel – either for the prisoner or for the prosecution – to suggest a precise period of imprisonment as being a proper penalty.  Nor would the prosecutor’s duty extend “to assisting the court to avoid appealable error if that means to urge the court not to impose a sentence less than a specified sentence” ‑ ‑ ‑

MR SILBERT:   Yes, and that was the prevailing law in Victoria prior to MacNeil‑Brown.  Precisely, your Honour.

GAGELER J:   Were Crown appeals against sentence available in Victoria at that time?

MR SILBERT:   Yes, they were, your Honour.

HAYNE J:   It was a Crown appeal.

MR SILBERT:   Yes, yes.

HAYNE J:   The Crown lost the appeal because it had not done enough at trial – at sentence.

MR SILBERT:   At trial to assist the trial judge, yes.  Your Honours, I do not know that I can do more than refer your Honours to the written outline of the interveners’ amended submissions.

FRENCH CJ:   Can I just come back?

MR SILBERT:   Yes, yes.

FRENCH CJ:   I mean, the answer to this may be obvious, but I would like just to hear you formulate it.

MR SILBERT:   Certainly, your Honour.

FRENCH CJ:   It is really back to the question of the fact that we are dealing with the exercise of federal jurisdiction, a federal offence, and the sentencing provisions in the Crimes Act.

MR SILBERT:   Yes, your Honour.

FRENCH CJ:   What implications does an answer to the questions raised in this matter have for the principles enunciated in MacNeil‑Brown because that is what your main concern is, which is ‑ ‑ ‑

MR SILBERT:   It is what our main concern is.

FRENCH CJ:   What is the pathway of their connection?

MR SILBERT:   The procedural pathway, as I understand it, is that the Commonwealth Code picks up, by virtue of the Judiciary Act, the Criminal Procedure Act of Victoria, so that the Commonwealth when prosecuting within Victoria is bound by the procedural law of Victoria and the sentencing practice of Victoria as to how sentences are imposed.

FRENCH CJ:   That has to be subject to the Crimes Act, does it not?  We are dealing with the Crimes Act and its sentencing guidelines.

MR SILBERT:   Yes, yes.

FRENCH CJ:   There are specific provisions there relating to discounts and so forth which would displace what is in the Sentencing Act, for example, of Victoria.

MR SILBERT:   Yes, yes, there are, your Honour.

FRENCH CJ:   What I am asking you, I suppose, is are you arguing that this is a principle that has sort of developed at common law and cuts across both federal and State jurisdictions or is it ‑ ‑ ‑

MR SILBERT:   I am arguing that, your Honour, because there is no statutory warrant for it, either in federal or State legislation.  It has come by virtue of a decision of a bench of five in MacNeil‑Brown and it has been applied generally, as far as State law in Victoria goes, and as far as Commonwealth law ‑ ‑ ‑

FRENCH CJ:   Has been transposed into the Victorian courts dealing with Commonwealth offences.

MR SILBERT:   Yes, your Honour, and the Commonwealth Director who sits to my right can correct me if I am wrong on that, but as I understand it ‑ ‑ ‑

MR BROMWICH:   It is entirely correct.

FRENCH CJ:   Has that transposition ever been explained in terms of the statutory provisions relating to federal offences and/or the Judiciary Act?

MR SILBERT:   Not to my knowledge, your Honour, but again the Director may know of an authority that does.  It is certainly common practice and it is taken as common practice that cases prosecuted in Victoria or, indeed, in any other State, pick up the procedural criminal law of that State.  I do not know if your Honours have any further questions of me in relation to this matter.

FRENCH CJ:   Thank you, Mr Silbert.

MR SILBERT:   Yes, thank you, your Honour.

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   The Commonwealth Director put the proposition that what was being said or disclosed by the Crown in the correspondence was a submission, or a position that the Crown had formed as to the appropriate sentence and when asked what the utility of that to the accused was responded, well, knowing where he stood.  It would only assist him to know where he stood if he reasonably anticipated that the judge would get to hear about it.  If the judge did not get to hear about it, it would not assist him one wit.

Whether or not the submission, if made by the Crown to the judge in the sentencing proceedings, is characterised as a submission of law or something else, it was plainly anticipated that – by the accused, by the offender when he was considering his plea whether to plead ‑ that the judge would get to hear about it and would give it consideration, not be bound by it but give it consideration.  What is the appropriateness of the Crown making such admission to the judge, again within the scope of 16A?  Section 16A says a judge should impose a sentence appropriate to all the circumstances.  The submission from the Crown would be what such a sentence should be.  The judge would be engaged in an intuitive synthesis.

The Crown would and had, in a sense, informed the accused that it would be making a submission as to the Crown’s opinion, if you want to use that language, which the accused, not unreasonably, anticipated that the judge would hear and listen to and consider and may well find persuasive.  Was it something that it was the Crown’s duty to put to the judge?  No, we are not in the area of duty, we are in the area of was it something that the Crown was entitled to put to the judge.  Was it something that the accused was entitled to have the judge know about?

An accused – a person when he is being sentenced has every right to say to the judge, I submit the appropriate sentence is X.  It is a submission about what the ultimate result should be.  Whether it is useful or not is beside the point.  It is an entitlement at a hearing to put a submission as to the ultimate result.  If an offender can do that, so too can a Crown.  A Crown, in my submission, is entitled to make such a submission, whether or not the court thinks it is going to be useful or not.  In this case, the Crown indicated to the offender that that was the Crown’s position, and made no objection when he sought to bring that position to the attention of the judge.

Whether or not it is going to be useful to the judge, in my submission, as I have said, is really neither here nor there.  But I would go further and say one can never predict whether it is going to be useful to the judge, because it will vary from case to case.  It will no doubt be supported by reference to all of those things that inform the intuitive synthesis, reference to the facts of the case, objective, subjective, to purpose of sentencing, principles of sentencing, other cases, but it will come to constitute a final submission as to what the appropriate sentence should be, supported by those various matters.  The judge may find it useful because that process may have led the judge to rethink what the judge’s tentative view was as to what the intuitive synthesis should be.  But my submission is that at the end of the day, it is not a question of whether or not it is useful, it is a question of whether or not it is something that can be done, and there is an entitlement to do ‑ ‑ ‑

BELL J:   Can I just raise with you the question of entitlement?

MR ODGERS:   Yes.

BELL J:   I think you put the submission firstly that the accused is entitled to specify the sentence that he or she submits ought be imposed, and if the accused is entitled to do that, so is the Crown.  Is that a common law entitlement?  My own experience rather suggests the contrary, if one ‑ ‑ ‑

MR ODGERS:   Yes.  Your Honour, I accept that practice varies from jurisdiction to jurisdiction and among lawyers and among practitioners.  I can certainly speak for myself.  I have on numerous occasions made submissions on behalf of an offender as to what the appropriate sentence should be.  I have never been queried that it was inappropriate.  I have heard many ‑ ‑ ‑

BELL J:   I am seeking to establish the basis of the entitlement and the matter that I am raising with you is that up until recent times, as Casey & Wells, for example, illustrates in Victoria and as experience in practice in New South Wales, with which I am familiar, suggests, until recent times it was not considered appropriate to speak in terms of specific numbers respecting a sentence.  Now, it may well be, as you say, that that practice has changed in recent times but it might be pitching it a little high to speak of an entitlement is the matter I raise.

MR ODGERS:   Yes, I understand that, your Honour.  I am putting the submission – I cannot take your Honours to authority which says there is such an entitlement.  I am submitting your Honours should accept that as an aspect of broad general principle, right to hearing, right to make submissions, I respectfully submit there is no apparent reason why either an offender or the Crown should be prevented from making a submission as to the ultimate outcome.  I put it just in terms of general principle.

Can I say this, though, that as I have said before in earlier submissions, one needs to separate out questions of what the Crown should do by way of a duty to assist which is one thing and which MacNeil‑Brown is about and, indeed, I think to some extent Casey is about, and separate that out from a question about – not talking about duty but entitlement to make a submission - regardless of whether or not there is some duty to do so.  In my submission, this is a case about the latter, not the former, and that needs to be remembered.

Can I say this, getting back to this question of youthfulness?  A judge will not know in advance whether or not a submission will be useful about the ultimate result, particularly once the reasons are explained as to why that is the opinion of the Crown.  But as I say, its usefulness should not be the relevant criteria.  Lastly, as to why ‑ ‑ ‑

HAYNE J:   Utility is masking the question of relevance.  Utility is masking the difficulty that the submission is not one which, on the face of it, at least, appears to be one that could rationally affect the determination of any question of law or question of fact that is to be determined by the trial judge.

MR ODGERS:   In my submission, if a judge is making a decision applying the law to the facts of a case which will result in a particular outcome, determine the level of damages for somebody or, in this case, the numbers of a sentence ‑ ‑ ‑

HAYNE J:   What matters is what the going rate is, not that X thinks that sentence such and such is appropriate in this case.

MR ODGERS:   My submission is that as an aspect of principles of fair hearing, the parties to that litigation, the parties to that adversarial proceeding, must be given an opportunity to make a submission as to the ultimate result.  That is something that the court should take into account.  It is a submission which, in the case of the Crown, will be made on the basis of a whole range of information and access to information which is not necessarily in the possession of the judge, and to say that the Crown cannot make such a submission, in my submission, goes far too far.  If it is to be said it is not relevant, that effectively means you cannot do it and, in my submission, that cannot be right.

But the position is, with respect, much stronger in the situation of a plea negotiation.  In the Canadian case of GWC which we provided to your Honours, the Alberta Court of Appeal said ‑ ‑ ‑

FRENCH CJ:   What are you replying to here?

MR ODGERS:   This is my last submission, your Honour, can I – I am given this indulgence.

FRENCH CJ:   That does not give you a blank cheque.  What are you replying to?

MR ODGERS:   The proposition that was in the interchange between my friend, Mr Bromwich, and members of the Court as to what is the reason why a court should take it into account?

FRENCH CJ:   If you are going to say something different from what you have already said in‑chief perhaps you should ‑ ‑ ‑

MR ODGERS:   I just draw your Honour’s attention to paragraphs 17 to 20 of the Alberta Court of Appeal and what they said as to the reasons why it should be given serious consideration, why, in substance, the opinion of the Crown which is agreed to by the defendant should be something that the sentencing judge should give serious consideration to.  May it please the Court.

FRENCH CJ:   Thank you, Mr Odgers.  Yes, Mr Walmsley.

MR WALMSLEY:   I am a little sensitive to your Honour the Chief Justice’s last remark, concerned about whether or not it is appropriate or of assistance to reply to that which fell from my learned friend, Mr Silbert, a moment ago.  Whereas I apprehend he was suggesting that in my case and in my learned friend’s case there is this unstated, hidden, perhaps dishonest, although that is my term not his, hope that by permitting a range it would somehow improve the chances for appellate relief thereafter, with the greatest respect, if we were to hypothesise a different plea hearing to that which we had in this matter, which included the matters that we complain about, it would have led precisely, and almost certainly, to the thrust and parry between her Honour and counsel for the two prisoners which would have openly disclosed the process whereby her Honour came to a particular sentence in a way that is not disclosed when the plea was deprived of that process and, accordingly, would enhance the sentencing judge’s chances of surviving appeal because of the open thrust and parry and disclosure caused by engaging the subject, that is between the judge and each of counsel in this case, in consequence of her reaction to that which was the opinion of the prosecutor and ‑ ‑ ‑

KIEFEL J:   I understood Mr Silbert to be saying that if the range has to be there is an obligation on the sentencing judge to take it into account, that would effectively be fettering the sentencing judge’s discretion and probably for no good reason, no logical reason.

MR WALMSLEY:   Yes, that is certainly what he said.  I am dealing with it hypothetically otherwise, your Honour.  And picking up something that his Honour Judge Hayne said a moment ago and, indeed, in the earlier context of utility, his Honour Judge Hayne observed as I recall it, that there might a utility in this context we are closely considering in better handling problems arising as a consequence of an inexperienced judge imposing the wrong penalty and, with respect, we agree with that observation.

But when you analyse it, it really amounts to this, that each party to the proceedings listening to such a sentence might be in a position to observe whilst it is in the area of dialogue and discussion, prior to synthesis into sentence, that a judge is going in the wrong direction or in a particular direction that can be the subject of appropriate further submissions, and so

the opinion of the prosecutor and, indeed, of defence counsel in coming to a concluded view that something then should be submitted that forewarns the sentencing judge that if that which just fell from his or her lips might lead to an error really engages the process that we say we should have had and did not have here; that is, the ability to look substantially beyond that which falls from the sentencing judge when she utters the sentence and the relief there is of course appeal, and to engage a closer analysis between the litigants and the sentencing judge during the process as a consequence of what we say we should have had available to us for discussion before the sentencing judge.

It is submitted that that is a good example of what can start off life as an opinion of a prosecutor during the sentence process and be critical of the apprehended likelihood of a sentencing judge going in the wrong direction so as to address it at first instance without having to wait upon the appeal.  It is submitted the utility of the process that we encourage this Court to find that we should have had and were not given can be found thus.  May it please your Honours.

FRENCH CJ:   Thank you, Mr Walmsley.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 3.39 PM THE MATTER WAS ADJOURNED