R v Gordon
[2022] ACTCA 48
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Gordon |
Citation: | [2022] ACTCA 48 |
Hearing Date: | 17 May 2022 |
DecisionDate: | 30 September 2022 |
Before: | Mossop, Loukas-Karlsson and Rangiah JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Crown appeal against sentence – offences committed in prison – whether sentencing judge erred in the application of ss 64 and 72 of the CS Act and s 118 of the Crimes (Sentence Administration) Act 2005 (ACT) – whether the sentencing judge erred in inviting counsel to submit on a proposed sentence – consideration of the principle in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 – whether sentencing judge erred in applying a 25 percent guilty plea discount – whether sentence manifest inadequacy – residual discretion exercised – appeal dismissed |
Legislation Cited: | Corrections Management Act 2007 (ACT), s 82 Crimes (Sentence Administration) Act 2005 (ACT), s 118 Crimes Act 1900 (ACT), s 20 |
Cases Cited: | Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 |
Parties: | The Queen (Appellant) Isaac John Gordon (Respondent) |
Representation: | Counsel A Williamson (Appellant) J White SC (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 56 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Justice Elkaim Date of Decision: 29 October 2021 Case Title: R v Gordon Citation: [2021] ACTSC 283 |
THE COURT:
Introduction
This is a Crown appeal against a sentence imposed by a judge of the Supreme Court (the primary judge): R v Gordon [2021] ACTSC 283. The offender had been sentenced for two offences:
(a)recklessly inflicting grievous bodily harm on another person contrary to s 20 of the Crimes Act 1900 (ACT) (maximum penalty 13 years’ imprisonment); and
(b)possessing a prohibited item contrary to s 82 of the Corrections Management Act 2007 (ACT) (maximum penalty six months’ imprisonment, a fine of 50 penalty units, or both).
The offences had been committed in prison. The offender had attacked another detainee with what was referred to as a “shiv”. This was a toothbrush handle with two razor blades embedded into the end of it. The victim was slashed on the face and right hand with this weapon.
The primary judge imposed a sentence of two years and six months’ imprisonment on the charge of recklessly inflicting grievous bodily harm and a wholly concurrent sentence of three months’ imprisonment on the charge of possessing a prohibited item.
A significant aspect of the sentencing exercise was addressing how this sentence was to relate to an earlier sentence which the offender was serving at the time of his offending. That was an aggregate sentence of just under six years from 28 April 2019 until 17 April 2025: R v Gordon (No 2) [2019] ACTSC 254. The non-parole period of the earlier sentence ended on 27 April 2022. This earlier sentence was significant because ss 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT) (CS Act) prevented the setting of a non-parole period for the offender’s new sentences and provided a default rule that sentences for offences committed in prison were to be cumulative upon an existing sentence unless the court directed otherwise.
Because the new sentences could not involve a non-parole period, the effect of s 118(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act) was that the offender would not become eligible for parole until the end of the new sentences. That would contrast with the usual situation in which a non-parole period could be set for the new sentences, in which case a new single non-parole period of an appropriate length would have been set in relation to all of the sentences which the offender was required to serve.
In the circumstances of the present case, if the new sentence was not made cumulative to some extent with the existing sentence, then the operation of s 118(2) of the CSA Act would mean that the whole of the three-year parole period of the existing sentence would need to be served in custody.
There were therefore two prominent issues that the court needed to address: first, how to achieve an overall period of full-time detention and second, if it was appropriate, how to achieve a period, towards the end of the sentence, of supervision within the community as would be the case if the offender had been able to be released upon parole.
The proceedings before the primary judge
Except for these issues, the sentencing exercise was a relatively straightforward one. The Crown tender bundle was tendered. A letter from the offender’s mother, a bundle of documents from ACT Health and part of a psychiatrist’s report referring to the offender’s subjective circumstances were tendered.
Recognising the significance of the issue, counsel for the offender referred to the operation of s 64 of the CS Act as explained in the decision of the court in Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 which had been decided just over a month previously. That was the case in which the long-overlooked consequences of s 64(2)(e) were recognised. Those were that a sentence of imprisonment imposed for an offence committed while in lawful custody was an “excluded sentence of imprisonment” with the consequence that Pt 5.2 of the CS Act, which provides for the setting of non‑parole periods, did not apply to it.
Counsel also mentioned the operation of s 72 of the CS Act, which is the presumption that sentences committed in custody are to be cumulative upon an existing sentence of imprisonment. He referred to the operation of s 118 of the CSA Act which would prevent any grant of parole until the conclusion of a sentence of imprisonment for which no non‑parole period had been set.
Counsel immediately submitted that if the court imposed a sentence that commenced at the conclusion of the current non-parole period and then suspended it after an additional period that would have the effect of requiring the offender to spend an additional period of actual custody prior to release pursuant to the suspension of the sentence and the grant of parole under the earlier sentence. He specifically suggested a head sentence of two and a half years’ imprisonment suspended after a period of 12 months. He suggested that the good behaviour order associated with the suspension of the sentence be a period of three years. He submitted that dealing with the matter in this way he was “seeking to mirror what would have been done prior to the issue of section 64 occurring”. He confirmed that he did not challenge the correctness of the decision in Biddle.
His Honour then enquired of counsel for the Crown as to what his submission was in relation to the sentence structure and suggested sentence. The transcript records the following:
HIS HONOUR: Mr Crown, what do you think of that formula?
CROWN: I think that’s a fair formula in terms of the basic construction.
HIS HONOUR: Right.
CROWN: The lengths – the Crown won’t comment on the suggested lengths and the appropriateness of them. However, the overall construction would seem fair.
HIS HONOUR: Yes, but do you wish to make any submission that the lengths are inappropriate? I’m not asking you to give me different lengths.
CROWN: No. The only---
HIS HONOUR: You say you don’t think those lengths are appropriate?
CROWN: The only length that caused mild concern for the Crown was the period before suspension. So the 12 months before the term would be suspended. That is the only---
HIS HONOUR: Okay. So you would have the suspension start a bit later than 27 April 2023?
CROWN: I would suggest to your Honour that that would be appropriate. It is effectively what is proposed is less than 40 percent if my maths serves me correctly.
HIS HONOUR: Yes.
CROWN: So the Crown would suggest that that particular length may be slightly shorter than required but in terms of all the other lengths, the Crown takes no issue.
There was then some discussion of the need for a direction under s 72(3) of the CS Act. Counsel for the offender made a submission about the extent of the discount for the plea of guilty having regard to the fact that the offender had offered to plead guilty at the criminal case conference to the charge of recklessly inflicting grievous bodily harm, but that had been rejected by the Crown until after the commencement of the trial.
His Honour enquired as to whether the sentence proposed by counsel for the offender was after the application of the discount for the plea of guilty. Counsel for the offender indicated that it was a matter for his Honour, but he submitted that an ultimate sentence of two and a half years would seem appropriate.
In response to a question from his Honour, counsel for the offender indicated that the appropriate starting point for a sentence of two and a half years would be 40 months if the discount was 25 percent and “about 39 months” if it was 20 percent. The latter calculation was not accurate, 37 and a half months being the correct figure.
His Honour then delivered his reasons. The orders pronounced differed from those ultimately entered and the following summary reflects those which were entered. In summary the effect of the sentence was as follows:
(a)on the charge of recklessly inflicting grievous bodily harm a starting point of 40 months reduced to 30 months on account of the plea of guilty;
(b)the sentence was to commence at the end of the non-parole period for the existing sentence;
(c)that sentence was to be suspended after 14 months upon entry into a good behaviour order for three years; and
(d)the sentence for possessing a prohibited thing was three months wholly concurrent with the longer sentence.
The grounds of appeal
The Crown has appealed against the sentence on a number of grounds. They are as follows:
(a)The learned sentencing judge erred in his application of ss 64 and 72 of the Crimes (Sentencing) Act 2005 and s 118 of the Crimes (Sentence Administration) Act 2005.
(b)The learned sentencing judge erred in inviting counsel to submit on a proposed sentence, contrary to the principle enunciated in Barbaro v The Queen [2014] HCA 2; 253 CLR 58.
(c)The learned sentencing judge erred in applying a 25% discount for the plea of guilty.
(d)The sentence imposed was manifestly inadequate.
Ground (a)
The Crown relied upon the explanation of the operation of s 72 by the Court of Appeal in R v Rappel [2019] ACTCA 11. It also referred to the statement of Mossop J in a sentencing decision shortly after the present one which related to offending in custody, that the sentence “would have to appropriately reflect the legislative policy that involves denial of leniency to persons who commit offences in prison, yet also adequately address the other purposes of sentencing”: Horan v O’Brien [2021] ACTSC 323 at [27].
The written submissions of the appellant on this point were as follows:
The sentencing exercise mandated by the legislative scheme for offending committed whilst in custody was relatively straightforward. The fact that the legislature had curtailed the sentencing judge’s discretion with respect to questions of cumulation and the availability of parole were not “problems” or “difficulties” to be overcome by the creative exercise of his sentencing discretion. With respect, the sentencing judge’s comments bespeak a general disagreement with the legislative scheme. The structure of the sentence imposed by a sentencing judge was plainly designed to avoid the consequences of the operation of that scheme.
As the Court of Appeal noted in Rappel at [24], any departure from the statutory norm established by s 72 should be accompanied by an explanation of the reason for the departure. No such explanation was provided by the learned sentencing judge. There was plainly no consideration of the legislative purpose of s 72, and the importance of condign punishment for offenders who commit offences of violence while in custody. There was no reference to the fact that the legislature clearly intends that where offences are committed in custody, in circumstances distinct in nature to the offences for which a sentence of imprisonment is already being served, either total or a significant degree of cumulation is typically required. Instead, the application of s 72(3) to the instant case was utilised as a means to achieve an outcome that would avoid the respondent spending “a very long” time in custody, without considering whether the sentence was, in all circumstances, “just and appropriate”, and whether a “very long time” in custody was precisely the kind of result that the legislature intended would occur in the ordinary course.
(Footnotes omitted.)
The passage from Rappel referred to in the appellants submissions is as follows:
24.The purpose of s 72 of the Crimes (Sentencing) Act is clearly enough to ensure that, ordinarily, those already within the penal system be given no leniency by way of concurrency with an existing sentence should they offend again while in custody. A departure from such a clear statutory statement of a sentencing norm should not lightly be countenanced. Within the jail community, further offending must be seen to carry the consequence of a full sentence being imposed as an almost inevitable outcome, so as to effectively deter further offending, rather than being seen to be subject to an effective discount because of an existing sentence. Those already in custody will then have the strongest of incentives not to transgress further and thereby extend their incarceration, the date of release obviously being of vital importance. If a departure from the statutory norm is considered appropriate in the exercise of the discretion retained to do so, it should be explained so that all concerned, including custodial authorities, those affected by the conduct, and an appeal court, understands why that norm has been departed from.
The submissions made by the appellant appear to be an assertion of specific error in that the primary judge determined the question of concurrency on an incorrect principle by failing to have regard to the legislative policy underlying s 72.
It is clear that, as Rappel explains, there is a different legislative policy reflected in the CS Act in relation to offending committed in prison as distinct from other offending. The default rule is altered from concurrency to cumulation. There is, however, in cases not involving attacks on corrections officers, no statutory threshold that must be met before an order is made allowing concurrency. In that sense, the position is similar to that which applies under s 71 where there is also no statutory threshold for the making of an order departing from the default rule of concurrency of sentences.
It is sufficient for a departure from the default position that, in the absence of a departure, the sentence would otherwise be too long in order to achieve the relevant purposes of sentencing. While in many cases the order permitting a departure from the default rule in either ss 71 or 72 is necessarily implied from the specification of the start and end dates of particular sentences, in the present case his Honour specifically addressed the issue by making a direction under s 72(3) as part of his orders.
The sentencing was being undertaken a month after the decision of the court in Biddle which drew attention to the exclusion of the power to set a non-parole period for offences committed while in lawful custody. That was a fact that had been overlooked in earlier Supreme Court decisions.
It is in that context that reference was made to the effect of the legislation and the need to structure the sentence in a way that achieved an appropriate outcome. It is true that counsel for the offender said explicitly that he was seeking to “mirror what would have been done prior to the issue of section 64 occurring” and his Honour did refer to the “section 64 problem”. However, that is not sufficient to indicate that his Honour erred by failing to recognise the requirements of the legislative scheme. Rather, he was seeking to achieve an appropriate sentence structure consistent with the legislative scheme. The complaint about the ultimate outcome of the sentencing exercise is one that must be dealt with as a complaint of manifest inadequacy rather than specific error arising from the operation of s 72.
Ground (b)
This ground raises the appropriateness of the primary judge having regard to the submission or suggestion by counsel for the offender that a sentence of two and a half years would be an appropriate one in the circumstances. The written submissions of the appellant on this point were as follows:
The appellant submits that while Barbaro focused on the duties of the prosecution, the basis for much of the plurality’s reasoning should not be so confined. The plurality was at pains to point out that the kind of submissions considered in that case tend to conflate the legitimate role of the parties to the sentencing process, and the role of the sentencing judge. It follows that there is no fundamental difference, in principle, to a submission made about the length of a particular sentence by the prosecution or defence. The appellant’s submission in this respect is supported by the view as expressed in Boikov [Boikov v The Queen [2021] NSWCCA 147].
What must be considered in each case is whether the sentencing judge’s discretion miscarried, because it involved effectively substituting the decision of the sentencing judge as to the appropriate sentence for the opinion of counsel. In this case, the sentencing judge simply invited counsel for the respondent to express the sentence that he sought in numerical terms, and then apparently adopted it and proceeded on the basis that is what the sentence would be without any further discussion or analysis. It involved a complete abdication of an independent judicial function.
Barbaro and subsequent authorities
Barbaro and his co-offender had committed very serious drug trafficking offences. They pleaded guilty. Prior to pleading guilty, in the course of discussions between their lawyers and lawyers for the prosecution, the lawyers for the prosecution had stated their views of the available sentencing ranges. When the matter came on for sentence, the sentencing judge indicated that she would not ask any party about the range within which the sentences should fall. During submissions, counsel for one offender mentioned the range that had been identified by the prosecution. The sentencing judge imposed a sentence that was outside the range stated by the prosecution to the offender’s lawyers.
The offenders sought special leave to appeal to the High Court. Special leave was granted but the appeal was dismissed. The argument on appeal was that the sentencing judge had failed to take into account a relevant consideration because she had declined to receive any submission from the prosecution about the range of sentences she should impose and that the hearing was procedurally unfair.
One of the difficulties for the appellants was that each conceded that the sentence imposed upon him was not manifestly excessive. Thus, each appellant was necessarily contending that the sentencing judge had erred in failing to hear a submission about the available sentencing range which was, in fact, wrong.
The argument put on behalf of the appellant Mr Barbaro was that in circumstances where the prosecution informed the accused of its position in relation to the available sentencing range, “principles of fairness and considerations of policy require the prosecution position be taken into account and given serious consideration by the sentencing judge”: (2014) 253 CLR 58 at 60. The policy basis for that was the encouragement of guilty pleas. The argument made reference to the earlier decision of the Victorian Court of Appeal in R v MacNeil-Brown [2008] VSCA 190; 20 VR 677 in which a majority of the court said that the prosecution was required to give a sentencing range if asked to do so by the judge or if it considered that the judge might fall into error.
The offences in Barbaro were federal offences and hence the Commonwealth Director of Public Prosecutions represented the Crown. The Commonwealth Director submitted that there was no risk of error perceived when the matter was before the judge and hence no legitimate expectation that the prosecution would make any sentencing range submission and no denial of procedural fairness.
These relatively limited submissions were in contrast to those put by the Director of Public Prosecutions for the State of Victoria who intervened by leave in the appeal. The submissions by the Victorian Director very clearly reflected substantial dissatisfaction with the state of affairs that had been created by the decision in MacNeil-Brown and it was these submissions that were ultimately picked up in the majority decision of the court. The Victorian Director submitted that MacNeil-Brown should be overruled and that the duty of the prosecutor to assist the sentencing judge did not extend to the provision of a sentencing range. Counsel for the Victorian Director pointed to the very significant practical problems faced by the Director as a result of the decision in MacNeil-Brown. These difficulties are outlined in the summary in the Commonwealth Law Reports of the Victorian Director’s argument ((2014) 253 CLR 58 at 63-64) as follows:
It generates practical difficulties: it requires not only the provision of overall sentencing ranges but ranges in respect of each separate count and for cumulation orders; it requires prosecutors to provide sentencing ranges in advance of the hearing of a plea in mitigation or immediately at its conclusion, where there is little time to digest all relevant material relied on by the offender; County Court judges have often requested the prosecution to review its range if considered by the judge to be too low, though it is difficult to understand why this occurs since the range is not binding on the judge; and there has been an increase in plea‑bargaining, where the accused offers to plead guilty on condition that the prosecution agrees that a particular sentencing range is appropriate.
(Footnotes omitted.)
The Victorian Director then advanced a series of arguments, many of which were adopted in the majority decision.
The principal judgment is that of French CJ, Hayne, Kiefel and Bell JJ. Gageler J wrote a separate judgment agreeing in the result but differing in his reasons.
Essential to the reasoning of the majority was that it identified two flawed premises in the applicant’s arguments which the judgment explained as follows:
6.The applicants' arguments depend on two flawed premises. The first is that the prosecution is permitted (or required) to submit to a sentencing judge its view of what are the bounds of the range of sentences which may be imposed on an offender. That premise, in turn, depends on the premise that such a submission is a submission of law. For the reasons which follow, each premise is wrong.
7.The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed. That being so, the prosecution is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge.
8.Because the premises for the applicants' arguments are wrong, the appeals must fail.
Thus, the essential proposition underlying the majority judgment is that a submission about the available range is not a submission of law or fact.
After reviewing the facts, the judgment identified that the decision in MacNeil-Brown should be overruled because the practice to which it gave rise was “wrong in principle”: at [23]. The judgment then, under a series of headings, articulates what are said to be the reasons for this conclusion.
First, under the heading “Available range”, the judgment explains the derivation of this language from the principles in House v The King (1936) 55 CLR 499. It identifies that the fact that a sentence imposed should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some “substantial wrong has in fact occurred” and that negative proposition “cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed”: at [27].
Second, under the heading “The role of the judge and of the prosecution”, the court identified that the prosecution, in identifying the available sentencing range in cases involving assisting authorities or a plea of guilty, cannot be dispassionate if it properly reflects the interests that the prosecution is bound to advance. Further, the statement by the prosecution of the bounds of an available range may lead to “erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process”: at [33].
Third, under the heading “The sentencing task”, the judgment refers to the fact that fixing the bounds of a range wrongly suggests that sentencing is a mathematical exercise. Further, any determination of the bounds of an available range would depend upon what considerations are judged to bear upon the fixing of the sentence and what effect is given to those considerations: at [35]. That will mean that any statement of the range will reflect stated or unstated conclusions or assumptions about what matters bear upon sentence and what weight is given to each.
Later under the same heading, the court said (at [38]):
If a sentencing judge is properly informed about the parties’ submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.
And at [39]:
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.
Such an exercise was to be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other comparable cases: at [40].
Fourth, under the heading “A statement of opinion, not a submission of law” the judgment rejected the view of the majority in MacNeil-Brown that the prosecution’s conclusion about the bounds of the available range of sentences was a submission of law. Rather, the judgment characterised it as a statement of opinion. The reasoning in the judgment is as follows:
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. Leaving aside the evident difficulties which attend such pretended accuracy, it is important to recognise that manifest excess or manifest inadequacy of sentence founds an inference of error in the exercise of the sentencing discretion. But the nature of the error that has been made is not, and cannot be, identified. All that is known is that, because the result "upon the facts ... is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance". Hence, stating the bounds of the available range of sentences states no proposition of law.
(Footnotes omitted.)
Fifth, under the heading “No want of procedural fairness; no other unfairness”, the judgment rejected the submission that there had been any denial of procedural fairness. That was because each appellant had a complete opportunity to make his plea in mitigation and any relevant submissions as to the facts or principles to be applied. That was in circumstances where it was for the prosecution alone to determine the charges brought against the applicants, that it was for the applicants alone to decide whether to plead guilty and that it was for the sentencing judge alone to decide what sentence should be imposed.
Gageler J referred to three fundamental propositions:
(a)the jurisdiction to determine the sentence to be imposed is conferred exclusively on the court: at [56];
(b)the prosecution has a role in the sentencing process which consists of presenting the facts and making any submissions which it thinks proper on the question of what sentence ought to be imposed: at [57]; and
(c)any such submission by the prosecution can never carry any greater weight than that of a submission and the attitude or opinion of the prosecution is irrelevant: at [58].
However, his Honour differed from the majority in saying (at [59]):
Whether made on behalf of the prosecution or on behalf of the offender, a submission that a sentence within a given range would or would not be available to be imposed by a sentencing court in the circumstances of a particular case is a submission of law. It is a submission that a sentence within that range would or would not meet a limiting condition of the discretion conferred on the court to sentence for the offence and therefore would or would not fall within the limits of a proper exercise of the sentencing discretion. In the specific context of sentencing for a federal offence, it is a submission that a sentence within that range would or would not answer the specific statutory description in s 16A(1) of the [Crimes Act 1914 (Cth)] of a sentence that is of a severity appropriate in all the circumstances of the offence.
His Honour pointed out that the character of such a submission does not depend upon how useful it might be, saying (at [60]):
The character of such a submission as one of law does not depend on the extent of the assistance a court might derive from such a submission, which may vary from court to court. Nor does it depend on the extent to which elaboration of the submission might be possible or appropriate, which may vary from case to case.
(Footnotes omitted.)
His Honour pointed out that the character of the submission as to the availability of a sentence within a given range could not vary as between the sentencing court and an appeal court: at [61].
His Honour said that the majority in MacNeil-Brown was correct to hold that the prosecution duty to assist a sentencing court to avoid appealable error requires the prosecutor to make a submission on sentencing range if the sentencing court requests such assistance or if the prosecutor perceives a significant risk that the sentencing court would make an appealable error in the absence of assistance: at [62]. If the prosecution may make a submission to an appeal court after the event that a sentence imposed is outside the available range, then the sentencing court should in principle be able to expect to be assisted before the event by a prosecution submission as to the available range. Such a submission would have no greater or lesser status than any other submission of law, and the sentencing court remains obliged to give effect to the court’s own conclusion as to the appropriate sentence.
In a case where the sentencing judge said she would derive no assistance from the prosecution submission as to the available range, there was no failure on the part of the prosecution to assist the court to avoid appealable error.
Further, his Honour found there was no denial of procedural fairness. That was particularly so when the submission which was denied to the sentencing judge was one which was accepted as being wrong in law: at [65].
In Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (Fair Work), the High Court determined that the decision in Barbaro did not apply to civil penalty proceedings.
The principal judgment was that of French CJ, Keifel, Bell, Nettle and Gordon JJ. This judgment summarised the reasoning in Barbaro as being based on three considerations:
(a)It is impossible to define the precise limits of the available range and an attempt to predict appealable error would involve an impermissibly numerical approach to sentencing: at [35].
(b)The negative proposition deriving from House v The King that a sentence is so far outside the range that it must be the result of a misapplication of principle cannot safely be transformed into a positive statement of the upper and lower limits within which a sentence may properly be imposed. Because reasonable minds may differ as to the available range, a statement of the available range can never be more than an expression of opinion and in criminal proceedings the Crown’s opinion is irrelevant: at [36].
(c)To permit the Crown to state the bounds of the available range could lead to erroneous views about the importance of such a statement in the sentencing process: at [37].
Gageler J discussed what was established by the decision in Barbaro. His Honour characterised the holding in Barbaro as not being based upon the irrelevance of an available range to the making of a discretionary judgment as to sentence but instead being based upon the respective roles of the judge and the prosecution in rejecting the holding in MacNeil-Brown that the making of submissions on sentencing range is an aspect of the duty of the prosecutor to assist the court. Thus, he explained what the plurality in Barbaro was doing was “to recognise a qualification to the common law duty of a prosecutor to assist a criminal court to avoid appealable error, founded on a consideration of legal policy”: at [77].
Keane J also wrote a separate judgment but not one which it is necessary to refer for present purposes.
In R v Ogden [2014] QCA 89 at [7], the Queensland Court of Appeal held that the rule in Barbaro was not infringed by the prosecutor and defence counsel supplying comparable sentencing decisions to the sentencing judge and making submissions about the similarities and differences between the circumstances and seriousness of those cases compared to the instant case.
In R vCastle; Ex parte Attorney-General(Qld) [2014] QCA 276, the Queensland Court of Appeal held that a submission by a prosecutor that the sentencing court should make a serious violent offence declaration or should declare a later date for parole eligibility would not have been inconsistent with the decision in Barbaro. Fraser JA (with whom Muir JA and Mullins J agreed) said (at [20]):
Those passages in Barbaro do not comprehend a submission that upon the uncontroversial facts of a particular case the sentencing judge is empowered to make and might consider it appropriate to make a declaration or otherwise to defer parole eligibility under the applicable statutory provisions. The decision in Barbaro did not preclude the prosecutor from making such a submission.
In Matthews v The Queen [2014] VSCA 291; 44 VR 280 at [22], a majority of a five judge Victorian Court of Appeal determined that the reasoning in Barbaro did not preclude defence counsel from making submissions suggesting an appropriate range. That was because some of the matters referred to in Barbaro involved a perceived risk of blurring what should be a sharp distinction between the role of the judge and the role of the prosecution and the potential for the prosecution submissions as to range being accorded undue importance. The majority considered (at [25]) that if defence counsel did make a submission as to range, then it was necessary and permissible for the Crown to respond and tell a judge whether, in the Crown submission, it would be open to impose a sentence within that range or, if not, draw the judge’s attention to comparable and other cases, current sentencing practices and other relevant considerations which support that conclusion. That did not suggest that the Crown would be entitled to specify an alternative qualified range because that was prohibited by Barbaro.
The court indicated that Barbaro did not detract from the Crown’s obligation to make clear what type of sentencing disposition it contended was necessary or appropriate, to make its submissions in a fair and even-handed manner and to assist the sentencing judge to avoid appealable error. If the offender submits that a non-custodial disposition or suspended term of imprisonment was appropriate, the prosecution should make it clear whether it contends, and if so why, a disposition of the kind proposed would not be a proper exercise of the sentencing discretion: at [27].
Matthews was relied upon in Director of Public Prosecutions(Cth)vKawasakiKisen Kaisha Ltd [2019] FCA 1170; 137 ACSR 575 at [409] and Director of Public Prosecutions(Cth) v Wallenius Wilhelmsen Ocean AS [2021] FCA 52; 386 ALR 98 at [317]. It was referred to in the judgments in Fair Work without criticism: Fair Work at [40], [74].
In CMB v Attorney-General for New South Wales [2015] HCA 9; 256 CLR 346, the High Court placed weight, in the context of the exercise of the residual discretion to dismiss a Crown appeal, on the duty of the prosecutor to assist the court to avoid appealable error: [38], [64].
In Director of Public Prosecutions (Cth) v Haynes [2017] VSCA 79; 270 A Crim R 455, the Victorian Court of Appeal emphasised that the decision in Barbaro maintained that the prosecution “has a duty to assist the sentencing court to avoid appealable error and may do so in a variety of ways. That duty includes identifying ‘the kind of sentence disposition that is appropriate or inappropriate’”: at [58]. For that reason, it was very significant for the purposes of the exercise of the residual discretion on an appeal that the Crown had failed to make clear submissions contrary to the disposition proposed on behalf of the offender.
In Boikov v The Queen [2021] NSWCCA 147, in a discussion of the requirements of procedural fairness, having outlined the respective roles of the parties and the court, Rothman J (with whom McCallum JA and Wright J agreed) said (at [12]):
It is not for the parties, either the Crown or an offender, to determine the bounds of the range by which the Court is constrained in determining the sentence to be imposed. Nor is it for the parties, between themselves or otherwise, to determine the range available to a Court in sentencing and offender.
(Footnotes omitted.)
Unsurprisingly, the authority cited for these propositions was Barbaro.
Commentary on Barbaro
The decision in Barbaro was targeted at a practice which, as the submissions made by the Victorian Director in that case made clear, imposed significant practical burdens and difficulties upon the prosecution. It sought to dissect out from the overall obligations of the prosecution to assist the court to avoid appealable error, a single practice, that of making, when requested or necessary, a submission as to the available range.
The decision in Barbaro is best understood as having, as its conceptual foundation, a limitation upon the common law duty of prosecutors to assist the court. This is the conceptual framework suggested by the decision of Gageler J in Fair Work. It provides a basis upon which the decision of the High Court can appropriately constrain the submissions that may be made by the prosecution in the particular way that it did. Unless conceptualised in this way, it is not clear what exercise the plurality in Barbaro was engaged in.
As Gageler J in Fair Work recognised, dealing with the matter as a policy-based limitation on the common law duty upon the prosecution avoids the need to rely upon the plurality’s reasoning that sought to characterise a submission about the available range as being the mere expression of an opinion rather than a submission about the law. This is desirable having regard to the persuasive force of what Gageler J said in Barbaro itself.
This case
In light of this explanation, what is the position in the present case?
The first submission of the prosecution (quoted at [26] above) is that the rule in Barbaro applies equally to submissions made on behalf of an offender. This is contrary to the decision in Matthews and those cases which have followed it. It is only supported by the comment in Boikov and some of the references in Barbaro itself which were referred to in, but not adopted in, Fair Work at [74].
When Barbaro is understood as involving a judicial confinement of the common law duty on the prosecution to assist the court, it is clear that there is no reason to depart from the decision in Matthews. Once it is accepted that the decision in Barbaro is a development of the common law based upon the policy considerations set out in that case, then it is clear there is nothing in Barbaro that would require the same reasoning to be applied to a submission made on behalf of an offender.
However, it is necessary to say something more about this point as it might apply here. What occurred in the present case was fundamentally different to what occurred in Barbaro. That is because there was no attempt on behalf of counsel for the offender to identify a legally available range of sentences. Rather, he made a submission as to the appropriate length of the sentence to be imposed. Generally speaking, having regard to the nature of the sentencing exercise, such a submission is rarely likely to be of any assistance to a judge. To suggest a single period of imprisonment is to do no more than to suggest a figure which the accused would like. Further, so far as the offender is concerned, the suggestion of a specific custodial term carries with it the risk that it will provide a floor upon any sentence that might be imposed and hence the offender will lose the chance that the judge might otherwise have imposed a lesser sentence. It is obviously very different to providing reference to comparable cases in order to allow an assessment of “current sentencing practice”: CS Act s 33(1)(za).
However, in the present case the judge already had the benefit of detailed written submissions from the Crown which included a table of five comparable cases relating to the offence of recklessly inflicting grievous bodily harm. Thus, the submission of a particular result occurred in that context and, to the extent to which the table of comparable cases disclosed a pattern of sentencing, was not obviously inconsistent with that pattern.
The second submission of the Crown quoted at [26] above contends that the sentencing judge had effectively substituted the opinion of counsel for the offender for his own decision and that this involved “a complete abdication of an independent judicial function”.
As outlined above, the proceedings before the primary judge required counsel for the offender to make a submission to his Honour about how the sentence that his Honour imposed should relate to the existing sentence of imprisonment. It was not inappropriate for counsel to make a submission as to an appropriate sentence structure having regard to the operation of ss 64 and 72 of the CS Act and s 118 of the CSA Act. In explaining the practical outcome of his proposed sentence structure, it was useful, and more able to be understood by the judge, to explain the proposed sentence structure on the basis of a particular head sentence. By doing so the consequences of that sentence structure would be more readily able to be appreciated. It was in that context that he made a submission that “a head sentence in the vicinity of two and a half years would be appropriate”. He subsequently made the submission that the sentence should be suspended after 12 months subject to a good behaviour order for a period. He suggested three years would be appropriate for the good behaviour order. It was at that point that his Honour asked the Crown for any submissions about that formula. Counsel for the Crown then made the submissions which are recorded at [12] above, accepting that it was “a fair formula in terms of the basic construction” and making a submission about the period of the sentence before suspension.
The Crown had provided written submissions and a table of comparable cases prior to the sentencing hearing. Save for the matters arising by reason of ss 64 and 72 of the CS Act and s 118 of the CSA Act, the sentencing exercise was a relatively straightforward one. The manner in which the matter proceeded, the reasons given for his Honour’s decision and the result do not indicate any failure to exercise the judicial function. On the critical issues of sentence structure and length of sentence, his Honour’s reasons (at [24]) indicate specific consideration of the appropriateness of what had been put to him by both parties: “In my view, the structure that Mr McLaughlin has recommended is sound and I intend to adopt his suggestions, although with one very short amendment to one of the time periods”. The overall brevity of his Honour’s reasons reflects the relatively straightforward and uncontentious nature of the sentencing exercise before him. That contrasts starkly with the position taken by the Crown in this appeal, but does not demonstrate any error on the part of the primary judge.
Ground (c)
The appellant submitted that the primary judge erred in allowing a discount of 25 percent on account of the plea of guilty. The submissions referred to the decision of the Court of Appeal in Cranfield v The Queen [2018] ACTCA 3 and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103. In the latter decision, the Court of Appeal noted that the discount of 25 percent “is generally reserved for cases in which a plea of guilty is entered at an early stage. In exceptional circumstances, it may apply in other cases”: at [80].
The written submissions of the appellant were:
This was not an exceptional case of the sort referred to in Toumo’ua. The respondent entered pleas of not guilty to intentionally inflicting grievous bodily harm in the Magistrates Court. On the sixth mention, the matter was committed for trial. Additional adjournments were sought in the Supreme Court before the matter was set for a four-day trial. The offer made by the respondent came just one month before the trial, over one year since the proceedings had commenced. In light of the timing of that plea, and the statutory scheme provided by s 35 of the Crimes (Sentencing) Act, it is clear that the sentencing judge erred in providing a discount of 25%. The discount was not applied in recognition of the actual utilitarian value of the respondent’s plea. Rather it appears to have been applied because of the numerical convenience it offered in the structure of the overall sentence.
(Footnotes omitted.)
Surprisingly, the submissions of the appellant made no reference to the decision of the Court of Appeal in Blundell v The Queen [2019] ACTCA 34. That was a case in which a plea of guilty was entered following a criminal case conference. A 10 percent discount was permitted. The court said (at [12]):
However, notwithstanding that his Honour considered appropriate factors, the result of a discount of 10% remains too low. Its defect is that it does not take full account of the utilitarian value of a ‘settlement’ following a Case Conference. The benefits, not only to the accused person, but also to the Crown (representing the community) and to the courts are so significant that a discount in excess of 10%, and almost always within the range of 15 to 20%, is required.
These reasons may be observed to provide a slender basis for the finding of a House v The King error given that it appears to find error in the weight given to a particular factor, namely the utilitarian value of the plea. The same may be said of the decision in Cranfield: see in particular the reasoning in that case at [39]. However, the concern of the court in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47], [124], Toumo’ua at [80], Blundell and Cranfield, appears to have been to ensure that accused persons have significant and predictable incentives to enter pleas of guilty. Those cases establish the parameters of those incentives. In doing so, they confine the discretion provided by the statute but do so in a way which facilitates the administration of justice.
It is in that context that the present ground of appeal needs to be considered. Having regard to the timing of the plea of guilty, that is after a plea of not guilty was entered in the Magistrates Court, the matter was committed to the Supreme Court and in association with a criminal case conference, Blundell would establish that, generally speaking, a discount in the range of 15 to 20 percent would be appropriate. There is nothing in the primary judge’s reasons or apparent from the facts which would justify a departure from that general approach through the allowing of a higher discount. In those circumstances, a discount of 25 percent involved an error.
As will have been apparent from the primary judge’s reasons, with the encouragement of the parties, the head sentence was arrived at by working backwards from the ultimate sentence proposed by counsel for the respondent. Thus, the adoption of an erroneous level of discount on account of the plea of guilty can be seen to have not affected the outcome. However, that is only because of the erroneous approach of working backwards from an effective sentence to a head sentence. Such an approach is inconsistent with proper sentencing methodology and undermines the regime of discounts provided for under s 35 of the CS Act. That is because it approaches and treats such discounts as if they are not real discounts but rather notional discounts to be created after the determination of the actual sentence which is set without regard to when the plea of guilty was entered.
This ground of appeal is made out.
Ground (d)
This ground asserts manifest inadequacy of the sentence. This was said to be by reason of the length of the sentence, the extent to which it was concurrent with the existing sentence and the period of actual imprisonment required to be served prior to suspension of the sentence. The Crown’s submissions addressed:
(a)the custodial setting being significant to the assessment of objective seriousness;
(b)there being too great a discount for the plea of guilty as articulated in ground (c);
(c)the sentence involving no additional time in custody as articulated in ground (a); and
(d)the failure to refer to the purposes of sentencing and the fact that rehabilitation was only one of the purposes of sentencing that the judge was obliged to give effect to.
The Crown submissions did not make reference to any cases which would establish a pattern of sentencing inconsistent with the sentence imposed by the primary judge.
The principles to be applied in dealing with a claim of manifest inadequacy or manifest excess in a sentence are well known. They are summarised in R v Nicholas; R v Palmer [2019] ACTCA 36 at [66]-[68] and need not be repeated here.
Each of the specific matters referred to in the Crown submissions was articulated as though it was a specific error but relied upon in aggregate as illustrating the manifest inadequacy of the sentence.
In relation to the first matter, the assessment of objective seriousness, the notable feature of this submission is how inconsistent it is with the manner in which the Crown conducted the matter below. Although the recitation of the facts in those submissions made reference to the offending having occurred in a cell, there was no reference in the Crown’s written submissions below to the significance of the custodial environment for the assessment of objective seriousness.
The discount for the plea of guilty is referred to earlier. While the ground is made out as a specific error, having regard to the primary judge starting at the discounted sentence rather than the sentence prior to the s 35 discount, it cannot be seen to have affected the length of sentence imposed.
The third submission repeats the contentions in relation to ground (a). The submission that the structure of the sentence involves the respondent avoiding spending any additional time in custody does not accurately reflect the position. It was made because the period of full-time detention required under the sentence imposed by the primary judge falls within the parole period of the earlier sentence. Thus, the submission would be accurate if the assumption was made that parole would not have been granted under the earlier sentence. However, that is not established to be an appropriate assumption.
The final submission asserts that rehabilitation was the only sentencing purpose given effect to. That submission was made because the primary judge did not make a specific reference in his reasons to the purposes of sentencing set out in s 7 of the CS Act and that it should be “inferred that the nature of the sentence his Honour imposed was designed to facilitate the rehabilitation of the respondent”. This submission cannot be accepted. It is true that his Honour did not set out or discuss the various purposes of sentencing in s 7 of the CS Act. However, the sentence ultimately imposed does not require the conclusion that his Honour only had regard to rehabilitation as a goal of sentencing. It involved the effective imposition of an additional 14 months in custody leaving the suspended portion of the sentence, being 16 months, subject to a three‑year good behaviour order. That sentence structure does not indicate that other purposes of sentencing such as deterrence, protection of the community and recognition of harm done to the victim were ignored.
Overall, when considered in the context of the existing sentence, the sentence imposed is a lenient one having regard to the nature of the conduct and the custodial context in which it occurred. However, it cannot be said to be so lenient as to indicate the existence of some undisclosed error of principle in its determination.
Residual discretion
The success of the appellant in relation to ground (c) raises the question of the exercise of the court’s residual discretion. The Crown bears the onus of establishing that the residual discretion to dismiss the appeal should not be exercised: CMB at [66]. The limiting purpose of Crown appeals to lay down principles for governance and guidance of sentencing courts (and not simply for general correction of errors) provides a framework within which to assess the significance of factors relevant to the exercise of the residual discretion: Green v The Queen [2011] HCA 49; 244 CLR 462 at [36]. The matters relevant to the exercise of the residual discretion include the conduct of the Crown in the court below. That is because the Crown has a duty to assist the court to avoid appealable error: CMB at [38], [64].
In this case there are four matters which, in combination and having regard to the purpose of a Crown appeal, indicate that it is clearly one in which the residual discretion to dismiss the appeal notwithstanding that error has been established, should be exercised.
First, no submission was made by the Crown before the primary judge to contradict the appropriateness of a discount of either 20 or 25 percent.
Second, because of the adoption of an incorrect sentencing methodology, the selection of the level of discount for the plea of guilty in fact made no difference to the sentence ultimately imposed.
Third, the Crown made no submission that suggested that the primary judge would fall into error if he adopted the head sentence suggested by counsel for the respondent which was in fact adopted by the primary judge.
Fourth, if his Honour had, in fact, started from an undiscounted sentence then the erroneous selection of the appropriate discount would only have made a modest change to the head sentence – a maximum of four months (if the discount was 15 percent) but, more likely, two months (if the discount was 20 percent).
Thus, notwithstanding that an error is established, the appeal should be dismissed.
Order
The order of the Court is: The appeal is dismissed.
| I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 30 September 2022 |
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