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 sentence become open. …  Hence, stating the bounds of the available range of sentences states no proposition of law”. 

1. Ultimately, it was held that, in those circumstances, it was not proper for the prosecution (and on my reading of the case) a party to put forward to a sentencing court a range of sentence.  For either party to do so, in my opinion, would be to contravene that which was stated by the High Court; that is, that making submissions as to the range is a statement of opinion and not one of law. 

1. I have had regard to Mr Wilson’s submissions in this regard.  He argued that a defence range is different to a prosecution range.  There are some differences but the reality is it does not alter the characteristic of this being a statement of opinion.  In my view, the High Court in the majority decision was strongly of the view that ranges could not be placed before the court. Accordingly I do not permit Mr Wilson to place a range before this court. 

1. The next question is whether defence counsel can contend for a specific sentence.  In Barbaro at [39], it was held:

“It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall.”

1. There was no such statement made concerning the role of defence counsel.   It seems to me that a submission as to a particular result is not a statement of opinion; it is a submission for which that party contends.  One can understand perhaps why the High Court has prohibited the prosecutor from making such a submission.  The role and duty of a prosecutor is quite different to that of defence counsel.  A prosecutor’s primary role is to assist the court to fairly arrive at a proper conclusion.  Of course, defence counsel also owe a duty to the particular client for whom they are acting. The prosecutor does not have a client. I consider there is a distinction to be made between the role of defence counsel and that of a prosecutor. 

1. It seems to me that there is no prohibition in the High Court decision against defence counsel submitting for a particular result. I will permit Mr Wilson to do so in this case. 

1. One final point is Mr Phillips in his submissions submitted that the ratio of Barbaro extends to both parties not being able to submit whether convictions ought be recorded or not; whether someone should be, for example, resentenced on a breach of a community based order; whether a suspended sentenced should be activated; and whether and for how long disqualification periods should be imposed where driving offences are concerned.  It does not seem correct that, at the least, defence counsel cannot make specific submissions relative to a given case on those topics. 

1. In my view the effect of such a construction may be to unduly delay proceedings where a court can potentially readily come to a conclusion with specific submissions which assist.  I am aware the Director of Public Prosecutions has issued a directive concerning the Barbaro decision.  Prosecutors are not to provide to the court a range of sentence, however it may be appropriate for the Director to reconsider whether the decision applies to such matters as to the recording of a conviction in a given case; whether there should be a resentence in breach proceedings or whether a suspended sentence should be activated.