MAXWELL P, BUCHANAN, VINCENT, REDLICH and KELLAM JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
14 April 2008
DATE OF JUDGMENT:
24 September 2008
MEDIUM NEUTRAL CITATION:
[2008] VSCA 190
2ND Revision 29 May 2009 [para 43]
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CRIMINAL LAW – Sentencing – Whether appropriate for the Crown prosecutor to make submission on sentencing range – Whether submission of law or expression of opinion – Submission on sentencing range to be given upon request or where significant risk of error as to applicable range – Purpose of submission on sentencing range to assist court, enhance consistency in sentencing and reduce risk of error – Submission to reflect position of Crown not view of individual prosecutor.
CRIMINAL LAW – Sentencing – Duty of prosecutor to assist sentencing court – Crown assistance on available sentencing range arises as an aspect of duty of prosecutor to assist sentencing court – R v Taitand Bartley (1979) 24 ALR 473, R v Marshall [1981] VR 725, R v Casey and Wells (1986) 20 A Crim R 191 applied.
CRIMINAL LAW – Sentencing – Discretion – Limits within which reasonable minds can differ on appropriate sentence – Limits of applicable sentencing range to be identified by Crown – Limits of range indicative or approximate only – R v S [2006] VSCA 134 approved – DPP v Ross (2006) 166 A Crim R 97 considered.
CRIMINAL LAW – Sentencing – Obtaining property by deception – Sentencing court requested submission from prosecution on appropriate sentencing range – Sentence imposed corresponded with prosecution submission – No interference with the exercise of the sentencing discretion – Whether appellant suffered mental impairment for purposes of R v Tsiaras [1996] 1 VR 398, R v Verdins (2007) 16 VR 269 – Whether sentence manifestly excessive – Appeal refused.
CRIMINAL LAW – Sentencing – Intentionally causing serious injury – Crown submission on sentence specified length of imprisonment – Whether discretion fettered – Sentencing discretion re-opened for error of law – No different sentence imposed upon re-sentencing – Appeal dismissed.
WORDS AND PHRASES – ‘Sentencing range’.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J W Rapke QC with Mr M A Gamble SC
Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant MacNeil-Brown
Mr O P Holdenson QC with Mr D A Dann
Victoria Legal Aid
For the Appellant Piggott
Mr C B Boyce
Ronald Tait & Associates
MAXWELL P, VINCENT JA, REDLICH JA:
These appeals raise an important point of principle concerning the discharge of the sentencing function. The issue for determination is whether, and if so in what circumstances, it is appropriate for the Crown prosecutor to make a submission to the sentencing judge about the sentencing ‘range’ applicable to the case at hand.
For reasons which follow, we consider that the making of submissions on sentencing range is…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v MacNeil-Brown [2008] VSCA 190
Case
[2008] VSCA 190
Decision Date
CaseChat Overview and Summary
The case of R v MacNeil-Brown dealt with the appropriateness of the Crown prosecutor making submissions on the sentencing range in criminal cases. The defendant, MacNeil-Brown, appealed against his sentence for obtaining property by deception and causing serious injury. The court was tasked with determining whether it was appropriate for the Crown prosecutor to make submissions on the sentencing range, whether such submissions were expressions of opinion or statements of law, and the circumstances under which such submissions should be made.
The court considered the duty of the prosecutor in assisting the sentencing court, referencing established case law. It held that the prosecutor’s assistance on the available sentencing range was an aspect of their duty to assist the court, ensuring consistency in sentencing and reducing the risk of error. The court also examined the discretion of the sentencing court, noting that the limits of the applicable sentencing range should be identified by the Crown, though these limits were indicative or approximate.
The court concluded that the Crown prosecutor’s submission on the sentencing range should be made upon request or where there was a significant risk of error regarding the applicable range. It rejected the notion that such submissions fettered the court's discretion or amounted to expressions of opinion, affirming that they were intended to reflect the Crown's position. The court found that the sentence imposed was within the appropriate range and did not find it manifestly excessive, leading to the refusal of the appeal.
No specific orders were made beyond the refusal of the appeal and the dismissal of the appeal in relation to the re-sentencing. The decision underscored the importance of prosecutorial submissions in guiding the court, provided they were made appropriately and in the spirit of assisting the court rather than dictating outcomes.