R v Costin

[2014] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Costin [2014] QDC 39

PARTIES:

THE QUEEN

v

ANTHONY GLEN COSTIN

FILE NO/S:

Indictment no. 98 of 2013

DIVISION:

Trial

PROCEEDING:

Criminal

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

Ex tempore reasons delivered 19 February 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

19 February 2014

JUDGE:

Smith DCJ

ORDER:

The defence is permitted to submit for a specific sentence

CATCHWORDS:

CRIMINAL LAW- SENTENCING- effect of Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2

R v MacNeil-Brown (2008) 20 VR 677

COUNSEL:

Mr. Phillips for the Crown

Mr. CFC Wilson for the Defence

SOLICITORS:

Office of the Director of Public Prosecutions for the crown

Bell Miller for the Defence

1. An issue has arisen in this sentencing proceeding as to whether the defence is  permitted, to submit as to a range of penalty or to contend for a specific sentence which it requests the court to impose.  The reason objection has been taken by the prosecutor is that on 12 February this year the High Court delivered the decision of Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 in which the practice of placing ranges before the court was discouraged and, in fact, held wrong. The first question which arises is whether the principles in this case apply equally to the defence.

1. In Barbaro there had been negotiations between the prosecution and defence in which some sentencing ranges had been agreed.  When the matter came on before Justice King her honour made it plain she did not intend to ask any party what the ranges were and, ultimately, imposed sentences in excess of that which had been agreed.  The appeal to the High Court was ultimately on this question.  It was argued by the appellants that procedural unfairness had occurred as the prosecution was not permitted to put before the court the agreed range.  In R v MacNeil-Brown (2008) 20 VR 677, there had been a practice in Victoria where a sentencing judge asked counsel for the prosecution to make a submission as to the available range of sentencing. The High Court distinctly disapproved of that MacNeil-Brown practice (see [29]). 

1. The majority of the High Court referred to “party” in the plural sense in [35] and [36].  Ultimately, at [42] and [43], it was held:

“Contrary to the view of the majority in MacNeil-Brown, the prosecution’s conclusion about the bounds of the available range of sentences is a statement of opinion, not a submission of law.  A statement of the bounds of the available range of sentences is a conclusion which depends upon identifying (and in many cases assuming) the facts and circumstances relevant to the offence and the offender and striking a balance between the many competing considerations which bear upon the sentence. 

A statement of bounds, on its face, purports to identify the points at which conclusions of manifest excess and manifest inadequacy of…