R v MacNeil-Brown

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 187 of 2007
THE QUEEN	v
HEATHER MACNEIL-BROWN
No 123 of 2007
THE QUEEN
v
PAUL WAYNE PIGGOTT

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JUDGES:	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	2^ND 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 an aspect of the duty of the prosecutor to assist the court. (The question of defence counsel’s duty to assist did not arise in these appeals, but will be touched on briefly later in these reasons.)[1]
[1]See [62]–[63] below.

It is only reasonable, in our view, for the sentencing court to expect the prosecutor to make a submission on sentencing range if

(a) the court requests such assistance; or

(b) even though no such request has been made, the prosecutor perceives a significant risk that the court will fall into error regarding the applicable range unless such a submission is made.

The function of such submissions is to promote consistency of sentencing and to reduce the risk of appealable error. It would be quite improper for such a submission to be used for any other purpose.[2]
[2]See [48] below.

It is necessary first to examine the concept of sentencing ‘range’, in order to make clear what we mean in speaking of submissions on ‘range’. As we explain below,[3] such a submission can only ever be indicative of the limits within which the sentencing discretion may lawfully be exercised.
[3]See [11]–[12] and [68]–[69].

The meaning of ‘sentencing range’

The sentencing decision is a discretionary judgment. The sentencing court is required to weigh up a range of relevant matters in reaching a judgment as to the most appropriate sentence in the circumstances of the case. In Norbis v Norbis, which concerned the responsibility of the Family Court to adjust property rights between the parties to a marriage according to what was ‘just and equitable’, Mason and Deane JJ said

Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. [4]

[4](1986) 161 CLR 513, 519.

Appeals against sentence accordingly attract the principles which govern, and limit, appellate intervention in discretionary decisions, as laid down in House v The King.[5] The concept of ‘range’ emerged in the case law on discretionary appeals. In Norbis v Norbis, Mason and Deane JJ said:
[5](1936) 55 CLR 499, 504 (Dixon, Evatt and McTiernan JJ); see also Harris v The Queen (1954) 90 CLR 652, 655-6 (Dixon CJ, Fullagar, Kitto and Taylor JJ); R v Taylor and O’Meally [1958] VR 285, 289-90 (Lowe and Gavan Duffy JJ); Dwyer v CalcoTimbers Pty Ltd (2008) 244 ALR 257, 266-7 [39] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part.[6]

In the same case, Brennan J quoted a statement by Asquith LJ in Bellenden v Satterthwaite,[7] that it was
of the essence of [a judicial] discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.[8]

Brennan J remarked:
The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.[9]

[6](1986) 161 CLR 513, 518 (emphasis added).

[7][1948] 1 All ER 343.

[8]Ibid 345.

[9](1986) 161 CLR 513, 540 (emphasis added).

There is, likewise, an ‘ambit of reasonable disagreement’ in the exercise of the sentencing discretion. It is a fundamental precept of sentencing law that there is no single correct sentence in a particular case, ‘no particular opinion being uniquely right’,[10] and that there will be ‘differences of opinion which, within a given range, are legitimate and reasonable.’[11] Thus, in Young, Dickensen and West v R, the Full Court (Young CJ, Crockett and Nathan JJ) said:

[T]he task of a sentencing judge is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence. The sentence thus arrived at may not be exactly the same sentence as another judge would pass, but the statement of that possibility does no more than recognise that when a sentence is discretionary different minds will reach different conclusions. It has always been recognised that subject to any particular statutory limitation a sentencing judge has open to him a range of sentences. He may choose between a custodial and a non-custodial sentence and if he properly choose the former, he has open to him a range of terms of imprisonment. A sentence within the latter range, assuming that imprisonment is called for, cannot be said to be inappropriate.[12]

[10]See also Lowe v The Queen (1984) 154 CLR 606, 612 (Mason J).

[11](1986) 161 CLR 513, 518; see also DPP v McMaster [2008] VSCA 102 [63]–[64] (Ashley JA).

[12](1989) 45 A Crim R 147, 151 (emphasis added).

The contention on appeal that a sentence is ‘manifestly excessive’ (or, in a Crown appeal, ‘manifestly inadequate’) is almost always supported by the proposition that the sentence is ‘outside the range’. In The Queen v Yuill and Besson,[13] for example, Young CJ said:
[13][1975] (Unreported, Young CJ, Barber and Norris JJ, 10 June 1975).

In a matter of this kind which involves the exercise of a discretion there will always be room for a considerable difference of opinion as to the proper sentence to impose. The proper sentence must fall within a range, and without attempting to place a precise figure on the upper limit, I am prepared to say that the present sentences are close to the top end of the range. But, in my opinion, they do not in all the circumstances fall above the upper limit. Thus, they are not manifestly excessive.[14]

Likewise, in The Queen v Boaza,[15] Winneke P said that before an appellate court could interfere with a sentence on the ground that it was manifestly excessive, the Court
would need to be persuaded that the sentence imposed by [the] judge was wholly outside the range of sentencing options available to him.[16]

In The Queen v McCormack,[17] the Full Court (Young CJ, Kaye and McGarvie JJ) upheld a submission that a sentence was manifestly excessive, because it was outside ‘the range of sentences which should be regarded as properly available to a sentencing judge in a case such as this.’

[14]Ibid 3 (emphasis added).

[15][1999] VSCA 126.

[16]Ibid [42]. For a recent example, see DPP v McMaster [2008] VSCA 102, [66] (Ashley JA).

[17][1981] VR 104, 112.

Several propositions can now be stated which lie at the heart of sentencing law and policy, as follows:

1.The decision as to the sentence to be imposed on a particular person for a particular offence is an individual expression of opinion or judgment.[18] As the High Court said in Lowndes v The Queen,[19] the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
2.Reasonable minds can differ on the appropriate sentence for a particular case. As Batt JA said in The Queen v Monardo,[20] there is ‘a range of sentences open to a sentencing judge in the exercise of a sound discretionary judgment.’
3.‘The range’ means the limits within which reasonable minds can differ on the appropriate sentence for a particular case.
4.It is an error of law to impose a sentence which is outside the range applicable to the particular case.

[18]The word ‘sentence’ comes from the Latin ‘sententia’ meaning opinion or feeling.

[19](1999) 195 CLR 665, 671 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

[20] [2005] VSCA 115, [28].

Against this background, the concept of a submission on sentencing range can be readily understood. It means a submission to the effect that the sentencing discretion will be lawfully exercised in the case at hand – that is, there will be no appealable sentencing error – if the sentence imposed falls within the range identified in the submission. Take, for example, the case of a person convicted of culpable driving. A Crown submission on range would be to the following effect:

In the circumstances of this case, the head sentence to be imposed on this defendant should be in the range to years, and the non-parole period should be in the range to .

The range thus nominated must be based on a clearly-articulated view of the gravity of the offence, the relevant sentencing principles and practices, and relevant aggravating or mitigating factors. All of these matters should be referred to in the course of the submission, so that the court understands how the Crown contends that the relevant matters should be brought to bear. As we have sought to emphasise, the function of a submission on range is to assist the court and reduce the risk of error. Importantly, the figures used to define the limits of the range can never be said to be more than indicative of where those limits lie. This is a topic we deal with further below.[21]
[21]See [68]–[69] below.

The duty of the prosecutor

In each of the present appeals, the sentencing judge specifically sought assistance from the prosecutor. Axiomatically, one of the duties of a Crown prosecutor is to assist the court, both at trial and on sentencing. The Director of Public Prosecutions, who appeared for the Crown in these appeals, readily conceded that this was so.

The traditional view was that the Crown played no part in sentencing. At least since the advent of Crown appeals against sentence,[22] however, it has become universally accepted that the Crown should play an appropriate part in the sentencing process. As will appear, the conferral on the Crown of the right to appeal was seen to have as its corollary an obligation to assist the sentencing court to avoid appealable error. During the 1980s this view was adopted by intermediate appellate courts at both State and Federal levels.[23]
[22]In Victoria, the Crown was granted the right of appeal in 1970.
[23]See [22] below.

The modern view was first given clear expression by the Full Court of the Federal Court (Brennan, Deane and Gallop JJ) in R v Taitand Bartley, as follows:

[t]he Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant’s case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. [24]

Tait and Bartley was itself a Crown appeal against sentence. The joint judgment continued:
The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis – a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court.[25]

Their Honours concluded with this word of warning to the Crown:
Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by a defendant … there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him.[26]

[24](1979) 24 ALR 473, 476-7 (Brennan, Deane and Gallop JJ).

[25]Ibid 477 (emphasis added).

[26]Ibid (emphasis added).

Shortly after Tait and Bartley, a Full Court of this Court (Young CJ, McInerney and McGarvie JJ) decided R v Marshall.[27] The Court was there dealing with the question of whether a trial judge should, before pronouncing sentence, give an indication of the sentence which he or she was likely to pronounce. Dealing with the response which the prosecutor might make to such an indication, the Court said ‘The prosecutor before a sentencing judge in accordance with the long tradition of the law invariably refrains from expressing an opinion as to the sentence to be passed.’[28]
[27][1981] VR 725.
[28]Ibid 735.

Their Honours continued:

The prosecutor should certainly assist the court by reference to relevant statutes, but we would, with the greatest respect, doubt whether the prosecutor’s duty extends 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: see R v Tait and Bartley at 477. We should have thought the prosecutor’s duty would be discharged by ensuring that the court was appraised [sc. apprised] of the range of sentences available …[29]

[29]Ibid (emphasis added).

The decision in Tait and Bartley was subsequently followed by a differently-constituted Full Court (Crockett, McGarvie and Southwell JJ) in R v Casey and Wells.[30] Like Tait and Bartley, that was a Crown appeal against sentence. Before the trial judge, defence counsel had nominated a specific head sentence and non-parole period as the appropriate sentence in the circumstances. The trial judge then asked the Crown Prosecutor if he wished to respond to that submission. The following exchange between the bench and the prosecutor is recorded in the reasons of the Full Court:
[30](1986) 20 A Crim R 191.

PROSECUTOR: Your Honour, I do not know whether it is appropriate for me to say anything about penalty really.
HIS HONOUR: I do not know, these days the Crown has the right to appeal and if you are going to sit back and say nothing, it puts a heavy onus on the trial judge particularly if you are going to go along later to the Court of Criminal Appeal and say his Honour did not sentence the prisoner appropriately.
PROSECUTOR: Your Honour, I had not quite candidly prepared myself for this, save as to say this, your Honour, that there seems to be a range, depending on the amount involved and the amount involved here, I would submit, falls into the higher range bracket. If I had some little time, your Honour, perhaps I could more readily answer that question.
HIS HONOUR: I will leave the bench for a few minutes.
On his return to Court the judge was told by the Prosecutor that he was ‘precluded from making comment’ and counsel quoted a passage from Burchielli (unreported, 10 June 1977, Court of Criminal Appeal, Victoria). [31]

The Full Court commented as follows:
We do not think it was appropriate for either counsel to suggest precise periods as being appropriate terms of imprisonment. But if the prosecution, as it now complains it should have got, wanted a higher penalty than that imposed, it ought to have done very much more than it did to allow the judge to form an accurate appreciation of the nature and extent of the heinousness involved in the offence.[32]

[31]Ibid 193-4 (Crockett, McGarvie and Southwell JJ).

[32]Ibid 194 (Crockett, McGarvie and Southwell JJ).

Noting that it had as little information as the sentencing judge, the Full Court said:

If the prosecution fails to do what is expected of it at the sentencing hearing thus allowing the judge to fall into error it cannot expect on its appeal to have that error corrected by an appellate court. There is authority of considerable persuasion to support this view.[33]

(The Full Court then set out the full passage from Tait and Bartley which we have extracted in [15] above.) Their Honours continued:
We do not think that these observations are in conflict with anything that was said by this Court in Burchielli or in Marshall [1981] VR 725. As we have already said, 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’: Marshall’s case at 735. But it is altogether another thing to assist the court by submission as to the range of sentences that could be said to be appropriately open, which is all that the judge asked for in the present case. After all, just such a submission is made almost daily in this Court – usually supported by reference to the annual publication of sentencing statistics in Victoria and, very recently, by reference to the comprehensive statistical data to be found in Fox and Freiberg – Sentencing State and Federal Law in Victoria (1985). If it is acceptable, and indeed helpful, to assist this Court with such submissions there can be no objection to counsel, on both sides, adopting a similar course during the hearing of a plea: see Williscroft [1975] VR 292, 301 and Marshall’s case, 735.[34]

[33]Ibid 195 (Crockett, McGarvie and Southwell JJ).

[34]Ibid 196.

The decision in Casey and Wells, adopting as it did all that was said in Tait and Bartley, stands as authority for the following propositions:

1. The prosecutor is under a duty to assist the Court to avoid appealable error.

2. That duty extends to making submissions – on a plea as well as on appeal – as to the range of sentences that could be said to be appropriately open.

3. An appellate court may well decline to intervene on an appeal against sentence to correct an alleged error if the Crown did not do what was reasonably required to assist the sentencing judge to avoid the error. (This is obviously a matter of discretion[35] and does not raise any issue of ‘estoppel’, about which the Director expressed concern in argument.)

[35]See R v Allpass (1993) 72 A Crim R 561; DPP (Vic) v Waack (2001) 3 VR 194, 207 (Phillips JA, with whom Batt and Chernov JJA agreed).

In our respectful view, what was said by the Full Court in Casey and Wells is still the law of Victoria. The duty of the prosecutor has not changed. Nor has the importance of the prosecutor’s assistance to the sentencing court. On the contrary, the prosecutor’s duty has been reinforced since 1986 by the imposition on the sentencing court, by s 5(2)(b) of the Sentencing Act 1991 (Vic), of the obligation to have regard to ‘current sentencing practices’; and the court’s need for assistance has become even greater, given the increasing complexity of the sentencing task.

Before we leave this part of the analysis, it is important to note that what was said in Tait and Bartley about the obligation of the Crown to do ‘what was reasonably required to assist the sentencing judge to avoid error’ was also adopted by intermediate appellate courts in Western Australia,[36] South Australia[37] and New South Wales.[38] In The Queen v Travers, Legoe J, having referred to Tait and Bartley and The Queen v Wilton, said:

I am comforted to know, and I think it worth recording, that the learned Crown Prosecutor indicated a tentative view as to the practice of Crown counsel. He told us that Crown counsel normally direct their attention in these circumstances to the following matters: (1) to straighten out any factual disputes; (2) to point out to the sentencing Judge any error or apparent error in the defence presentation of the facts; (3) if necessary (or if asked) when the crime can clearly be said to fall within a certain scale of penalties; and (4) in the appropriate case when suspension of the sentence is out of the question.[39] (emphasis added)
[36]R v Jones [1984] WAR 175, 179-180 (Burt CJ, with whom Smith and Pidgeon JJ agreed).
[37]The Queen v Wilton (1981) 28 SASR 362, 363–4 (King CJ, with whom Mitchell and Williams JJ agreed); The Queen v Travers (1983) 34 SASR 112, 116-7 (Legoe J, with whom Millhouse J agreed).
[38]R v Jermyn (1985) 2 NSWLR 194, 197-8 (Street CJ, with whom Lusher J agreed), 203–4 (McHugh JA).
[39](1983) 34 SASR 112, 116.

The arguments against: the appellants

Improbably, counsel for Ms MacNeil-Brown submitted that the decisions in Marshall and Casey & Wells ought now to be overruled, together with the recent decision of this Court in R v S.[40] According to their written submission, overruling was necessary because –

(a)the Crown will often be simply unable to make any informed or helpful submissions as to the appropriate range because that range will depend upon both material which will not have been known to the Crown before the hearing of the plea and findings of fact yet to be made on issues concerning, not only the circumstances of the offence, but also matters subjective to the offender, each and all of which may be the subject of disputed facts;
(b)there is a risk that the exercise of the sentencing discretion will be seen to have been fettered by the desire of the sentencing judge to avoid creating a situation where there will be a Crown appeal against sentence; and
(c)there is a risk that the sentencing judge will be seen to have imposed a sentence so as to avoid there being a Crown appeal against sentence.

[40]See [34]–[36] below.

Instead, it was submitted, this Court should rule that it was inappropriate for a Crown Prosecutor to make any submission on sentencing range except where -

(a) defence counsel had submitted that a disposition other than imprisonment ought to be imposed on the offender;[41]
[41]The Queen v Wilton (1981) 28 SASR 362.

(b) defence counsel had nominated a specific sentence, or period of imprisonment, which ought be imposed on the offender;[42]
[42]Cf DPP (Vic) v Bulfin [1998] 4 VR 114, 117 (Winneke P); DPP (Vic) v Cook (2004) 141 A Crim R 579, 589-90 (Eames JA), 591-2 (Smith AJA).

(c) defence counsel had said something which would be likely to mislead the sentencing judge and which therefore required correction by the Crown;[43] or

(d) the offence for which the offender was to be sentenced was novel.[44]

[43]Cf R v Rumpf [1988] VR 466, 473 (McGarvie J, with whom Young CJ and Marks J agreed).

[44]Cf R v S [2006] VSCA 134.

This opening position was soon abandoned, however, when Vincent JA drew attention to the sentencing Court’s obligation under s 5(2)(b) of the Sentencing Act 1991 (Vic) to take into account ‘current sentencing practices’. Senior counsel conceded that the restrictive approach for which he was contending was incompatible with the clear intention of that provision.

Senior counsel then advanced two further alternative positions, as follows. He argued that the Court should hold that either –

(a) the prosecutor may provide information which bears on sentencing range (sentencing statistics and bundles of ‘like or comparable cases’), but may not specify any figures as marking out the boundaries of the range; or

(b) the prosecutor may make a submission, using figures to specify the limits of the appropriate range, but should not:

(i) inform the sentencing judge what sentence the Crown considers appropriate;

(ii) urge the imposition of a particular sentence;

(iiii) urge the sentencing judge not to impose a sentence less than a specified sentence; or

(iv) convey any implication that the rejection of the Crown’s submission might trigger a Crown appeal against the sentence imposed.

The limitations identified in the latter formulation accord with the case law, and were not in issue on the appeal.

The risks which are said to justify prohibiting, or restricting, the making of submissions on range fall into three categories, as follows:

·impossibility of performance by the Crown;
·the appearance of interference with the sentencing discretion;
·actual interference with the sentencing discretion.

In oral argument, counsel for Ms MacNeil-Brown also contended that submissions on sentencing range put at risk the ‘instinctive synthesis’ by which a sentencing judge arrives at the sentencing decision.[45]

[45]See, for example, DPP (Vic) v Josefski (2005) 13 VR 85, 105 (Chernov JA) (see [31] below).

We deal with each of these perceived risks in more detail below. It is sufficient at this point to note that none of these risks appears to have troubled the members of the successive Full Courts in Marshall and Casey and Wells, when they affirmed the obligation of the Crown to assist the sentencing judge on range. The concern about the instinctive synthesis also appears to be unfounded. Crockett J was a member of the Full Court in Casey and Wells. As appears from the extract set out above, the Court in Casey and Wells referred specifically to the judgment of Adam and Crockett JJ in R v Williscroft,[46] in which their Honours had said ‘[u]ltimately every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process.’[47]
[46][1975] VR 292.
[47]Ibid 300.

Before dealing further with these issues, however, it is convenient to summarise the arguments advanced by the Director on behalf of the Crown.

Crown submissions

The submissions for the Crown on these appeals sought to distinguish between the earlier authorities to which we have already referred, and certain more recent authorities to which reference will be made shortly. According to the Director’s submission, the earlier authorities established that the Crown had a duty to assist the Court to avoid appealable error, and that this duty extended to:

·giving the court an adequate presentation of the facts;
·making appropriate reference to any special principles of sentencing applicable to the case at hand;
·fairly testing the accused’s case; and
·ensuring that the Court was apprised of the range of sentences available.

The recent authorities, however, were said to be ‘inconsistent, if not contradictory’. The Director referred in particular to the decision of this Court in DPP(Vic) v Josefski.[48] That was a Crown appeal, relevantly on the ground that both the total effective sentence and the non-parole period were manifestly inadequate. During the course of the appeal Maxwell P asked the then Director to specify, if he could, the minimum non-parole period below which it would have been unreasonable for any sentencing judge to impose sentence. The Director nominated a period. In his dissenting judgment, Maxwell P said:
[48](2005) 13 VR 85.

Speaking for myself, I see no reason why, on a Director’s appeal, the Court should not invite the Director to nominate what he considers to be the limits of the appropriate sentencing range for a given case. I accept that it may not always be possible to provide a definite response to such a question and it is of course ultimately for the Court, not counsel, to decide these issues.[49]
[49]Ibid 91.

The majority (Chernov and Callaway JJA) disapproved of the Crown being requested to define the (lower) limit of the appropriate range in this way. Callaway JA said:
I think it would have been better if the director had asked leave not to respond to the question from the bench about figures. It is quite possible to submit that a sentence, or a non-parole period, is manifestly excessive or manifestly inadequate without specifying the outer boundaries. Like Chernov JA, I am not at all sure that it is possible to specify those boundaries. I am quite sure that, in most cases, it is unnecessary, and undesirable, for counsel to do so. I would reserve for another day the question whether an exception should be made for Crown appeals. At present I am unpersuaded.[50]

Chernov JA said:
I consider that, ordinarily, there is difficulty in the court relying on outer parameters of a notional sentence put forward by counsel in response to a request for such information by the bench for the purpose of determining whether a sentence is plainly wrong. An analysis that is based on such material may run counter to the principles underlying the instinctive synthesis approach adopted by this court.
Moreover, reliance by the court on such material may lead to the risk of sentencing appeals being unduly concerned with sentences that were imposed in other, allegedly similar, cases. Ordinarily, if counsel were asked to formulate, in arithmetical terms, what he or she considered to be the range of sentences that was properly available to the sentencing judge, or what was the upper or lower limit of such a range, the response would necessarily be based, either on counsel’s subjective views – which would not assist the court – or on sentences imposed in other cases. And in respect of the latter position, this court has said, on numerous occasions, that, ordinarily, ‘it is of little utility … to seek to attack a sentence imposed in one case by reference to penalties imposed by courts in differing circumstances in other cases.’[51]

[50]Ibid 95.

[51]Ibid 105-6.

The Director also referred to R v Bangard.[52] In that case, a newly-appointed trial judge, hearing a plea in mitigation, had sought assistance from prosecution and defence in relation to the current sentencing practices for manslaughter. (We pause to point out that this request was entirely in accordance with s 5(2)(b) of the Sentencing Act 1991 (Vic).) Neither counsel was able to assist the judge. Defence counsel responded by saying that he did not know what the current statistics were for such sentences and that judges usually found such material of little value. He said ‘I don’t know what the current sentencing range is as such, but I don’t expect, in accordance with the Director’s policy, that the Crown would be putting any figures to your Honour …’[53]
[52](2005) 13 VR 146.
[53]Ibid 151 (Eames JA).

The sentence was appealed on the ground that it was manifestly excessive. Counsel for the appellant produced to the Court a lengthy document comparing the circumstances and sentences in 93 manslaughter cases. The appeal was allowed unanimously. Each member of the Court commented on the utility of sentencing statistics. Buchanan JA said:

Sentencing statistics may be of limited value, for each sentence involves a unique synthesis of diverse factors stemming from the circumstances of the crime and the character and antecedents of the offender. Nevertheless, statistics may provide guidance by showing general trends in sentencing. In R v Giordano[54] Winneke P said:
[54][1998] 1 VR 544, 549.
however a general overview of the sentences imposed by courts over a substantial period for offences of a similar character must inevitably play its part in provoking the instinctive reaction of any court which is asked to consider whether a particular sentence is manifestly excessive or manifestly inadequate.
His Honour was speaking of appellate courts, but in my view sentencing statistics may equally benefit judges imposing sentences at first instance.[55]
[55][2005] 13 VR 146, 148-9.

Eames JA said:

As Chernov JA also points out in Josefski, notwithstanding the admitted difficulty of ascertaining the limit of the range applicable in a given case the Court of Appeal ordinarily declines to invite or entertain submissions by counsel as to the range. However, in my view, whilst discouraging counsel from attempting to usurp the role of judges or from indulging in sentence bargaining, the appellate courts and sentencing judges should be alert not to also discourage counsel from proffering useful and relevant information which may remove some of the uncertainty in the search for the appropriate range in a given case.[56]
[56]Ibid 151.

In his Honour’s view, the document prepared on the appellant’s behalf:
served [a] useful purpose, in that it provides some guidance to a judge, necessarily only in a broad way, on the important question of consistency in sentencing.
I do not suggest that in all cases such information ought be provided to a sentencing judge by counsel, but certainly where the judge invites assistance in the sentencing task I can see no reason why counsel should be reluctant to provide it. Relevant and accurate sentencing information is much more readily available today than was the case in years past. In my opinion, the exercise of the sentencing discretion may be intuitive, but it neither is, nor should be, uninformed.[57]

Noting ‘the inherent limitations of sentencing statistics’, Nettle JA said:
So to say is not to ignore the importance of consistency in sentencing. If a sentence is higher than any other in statistics furnished to a court of criminal appeal, it goes without saying that is a matter which calls for scrutiny. That is why trial judges should and do take sentencing statistics into account.[58]

[57]Ibid 152.

[58]Ibid 153.

In R v S,[59] the applicant pleaded guilty to one count of cultivating a large commercial quantity of cannabis. This was the first time that this offence had come before the courts. During the course of the plea counsel for the applicant submitted that a wholly suspended sentence was appropriate. The prosecutor told the judge that he had sought instructions from the Chief Crown Prosecutor in relation to sentence, and submitted that a head sentence of less than five years would be inadequate. Upon appeal counsel for the applicant complained that the sentencing judge had taken into account an irrelevant matter, namely the opinion of the Chief Crown Prosecutor, and that it was ‘wrong in principle’ for such a submission to be made on behalf of the Crown (regardless of whether specific reference was made to the Chief Crown Prosecutor).
[59][2006] VSCA 134.

Maxwell P, Neave JA and Bongiorno AJA, in a joint judgment, rejected that contention for the following reasons:

One of the functions and duties of a prosecutor is to assist the court to avoid error in the conduct of criminal proceedings, whether at trial or on sentencing. In a sentencing hearing a prosecutor should be ready to assist the court by drawing attention to any statutory maximum penalty applicable and to any particular sentencing options available or unavailable in the particular case. In addition, the prosecutor should be ready to make submissions about the sentencing range applicable to the offence(s) for which the person is to be sentenced.
In carrying out this function the prosecutor represents the Crown. He or she does not represent any particular Crown officer. In performing these functions a prosecutor should, as far as possible, avoid any appearance of giving a personal opinion, whether his or her own or that of any other Crown officer. Any submission should be made in the name of the Crown. It should be phrased in such a way as to obviate any possibility of its being seen as the opinion of a particular Crown officer. In the present case, the reference to the opinion of the Chief Crown Prosecutor, though undesirable, was not a material error.
Subject to that qualification, properly-formulated and neutrally-expressed submissions by the Crown as to matters of sentencing are to be encouraged. They should include, where appropriate, submissions as to the applicable range outside which a sentence would constitute sentencing error. For counsel to indicate the limits of the sentencing range is conducive to consistency of sentencing, which is a matter of fundamental importance to the criminal justice system.

Submissions of that kind can be of great assistance to a sentencing court. They can be contradicted appropriately in submissions by defence counsel and thus contribute to the attainment of a just result in the proceeding. Such submissions should not urge the imposition of any particular sentence, and above all should not convey any implication that rejection of the submissions might trigger a Crown appeal against sentence. The submission in the present case, we should add, conveyed no such implication.[60]

[60]Ibid [39]-[42].

According to the Director’s submission on these appeals, the decision in R v S

appears to be the first appellate authority that refers to an applicable range outside which a sentence would constitute sentencing error (ie figures) as distinct from the traditional reference to the obligation in respect of a ‘range of sentences’ available ie immediate custodial, suspended sentence, non-custodial sentence et cetera. This is a significant departure from the previous common law position.

This submission may be disposed of shortly. The decision in R v S was consistent with the position enunciated in Casey and Wells, where the Court endorsed the making of submissions on range directed at the appropriate length of the term of imprisonment.[61]

[61]See [16]–[18] above.

We wish to emphasise, as the Court said in R v S, that submissions on range are conducive to consistency in sentencing. Consistency in sentencing is of fundamental importance to public confidence in the criminal justice system and to the maintenance of the rule of law.[62] Not surprisingly, the first of the stated objects of the Sentencing Act 1991 (Vic) is ‘to promote consistency of approach in the sentencing of offenders.’[63]
[62]Lowe v R (1984) 154 CLR 606, 610-11 (Mason J); Wong v The Queen (2001) 207 CLR 584, 591 (Gleeson CJ).
[63]Sentencing Act 1991 (Vic) s 1(a).

The Director’s submission, like that of the appellants’, contended that the making of submissions specifying limits of an available range was ‘likely to pose’ various difficulties, as follows:

·it would lead to a bidding process akin to an auction;
·it runs counter to the instinctive synthesis approach to sentencing;
·it might reduce community confidence in the prosecution, for example where a sentencing judge imposed a sentence outside the range submitted by the Crown;[64]
·the view of an individual prosecutor is irrelevant and no machinery exists for the submission of an ex officio view;[65]
·it would create unreasonable demands on the Crown to undertake this exercise in every case. It would require significant extra resources and impose enormous practical difficulties.

[64]Cf R v Dickson [2007] VSC 59.

[65]See R v Marshall [1981] VR 725, 735.

The position which the Director urged this Court to adopt was as follows. While it was acknowledged that the Crown should play a role by way of assistance on a plea, there ought to be ‘strict qualifications to that principle’. The Crown should not be required to put forward actual figures when making submissions as to range

unless specifically asked, and then only in an exceptional case. For example, cases involving a particularly inexperienced sentencing judge, or a new type of offence, or an offence in which the maximum penalty has recently been altered. However, the Crown should not be expected to respond to such a request unless (a) it has been given adequate notice by the court of its intention to seek such assistance, and (b) it has been given adequate opportunity to read and consider any material to be advanced on the plea by the defence.

We turn now to consider, in turn, the various ‘risks’ and ‘difficulties’ identified in the respective submissions.

Consideration

A submission on sentencing range is no different from any other submission which counsel makes, whether in criminal or civil proceedings. A submission conveys the considered judgment of counsel, based on analysis and evaluation of the relevant facts and the applicable law. The drawing of comparisons with, and distinctions between, other cases is a routine part of the making of submissions, as is argument seeking to extrapolate from one case to another. A submission on sentencing range has all of these characteristics.

To suggest, as counsel for the appellants did in these appeals, that a submission on sentencing range is merely ‘an expression of opinion’ is to mischaracterise counsel’s function. A submission on sentencing range is a submission of law. It identifies the ambit within which – according to the submitting party – the sentencing discretion may lawfully be exercised in the circumstances of the particular case. It is a submission explicitly formulated to assist the sentencing judge to avoid appealable error, that is, error of law.

We discount altogether the possibility that a judge might (disingenuously) sentence in accordance with the Crown’s submission so as to avoid an appeal, while harbouring a private view that a different sentence should have been imposed. Sentencing judges daily discharge their difficult task with great care and much anxious consideration. The Director eschewed any submission that the making of submissions on range would produce any actual ‘interference’ of this kind. He made clear that the Crown had no concern that a Crown submission on range would in fact displace or distort the exercise of the court’s discretion.

In our view, the making of a submission on range does not carry any risk of actual, or apparent, ‘interference’ with the sentencing judge’s exercise of discretion. If a submission from one side is adopted in preference to the submission from the opposing party, it can reasonably be inferred that the judge was favourably influenced by the submission of the successful party. To say this is to do no more than acknowledge the purpose and efficacy of good advocacy. Our entire adversarial system is based on the premise that the judge will be assisted by competing submissions from both sides and will be able impartially to decide which of the submissions is to be preferred.

So too with a submission on sentencing range. It will self-evidently be of assistance to a sentencing judge to be informed by the prosecutor that, in the Crown’s submission, a sentence in the nominated range would be correct in law. No judge is bound to accept counsel’s submission on any point, and a sentencing judge is entirely free to come to a different conclusion. Indeed, the judge is bound to do so if, in his/her judgment, a sentence outside the nominated range is called for and can lawfully be imposed. The weight to be given to a submission is to be judged according to the merits of the argument(s) which it advances. It would be wrong for a judge to accord weight to a Crown submission on sentence merely because it came from the Crown.

The Director’s only concern was that, when a sentence was imposed within the limits advanced by the Crown, there might be an appearance – a ‘reasonable apprehension’ – that displacement or distortion of the sentencing discretion had occurred. We are wholly unpersuaded that any such risk exists. As we have pointed out, all that could reasonably be inferred in such circumstances is that the judge, having independently considered the Crown’s submission, accepted it as correctly defining the legal limits applicable to the case. No reasonably informed observer, understanding the adversarial system and the role played by the Crown in sentencing, would infer that the judge had breached his/her duty by arriving at a decision otherwise than in accordance with his/her own view of what justice required in the case at hand.

For similar reasons, we reject the argument that the advancing of competing submissions on range, by prosecution and defence respectively, would create the appearance of an ‘auction’. Once again, this is a fundamental mischaracterisation of the adversarial process. It is a matter of obligation for counsel on both sides to assist the court. We were informed from the bar table that defence counsel are reluctant to make submissions on sentencing range and rarely do so, but it cannot be doubted that such a submission could appropriately be made.[66] When that occurs, and the sentencing court is presented with competing arguments, this is in no sense an ‘auction’. The task for the sentencing judge remains the same. He/she must evaluate the competing submissions, consider the applicable law and the relevant facts of the case, and make a decision.
[66]R v Casey and Wells (1986) 20 A Crim R 191 (see [18]–[21] above).

Different considerations would arise, of course, if a submission on range was used as an occasion ‘to seek headlines’.[67] It would, of course, be quite improper for a prosecutor to misuse the sentencing process in that way. But the risk of such impropriety is, we think, negligible. In our experience, prosecutors – aware of their public function as ‘ministers of justice’[68] – can confidently be relied on to make submissions which are carefully considered and presented in a measured and balanced way.
[67]See J D Heydon, ‘Reciprocal Duties of Bench and Bar’ (2007) 81 ALJ 23, 26.
[68]R v Lucas [1973] VR 693, 705 (Newton J and Norris AJ).

Even if, contrary to our view, the making of submissions on sentencing range did carry with it any of the risks identified, those risks – which are, essentially, risks of perception rather than of substance – would be demonstrably outweighed by the manifest public benefit in promoting consistency of sentencing and minimising appealable error.

The position in other jurisdictions

Our view is consistent with the position adopted in most Australian States and Territories, and in other common law jurisdictions.

Submissions on range, by both prosecution and defence,[69] are allowed in New South Wales.[70] Chapter 28 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions (NSW) permits the prosecutor to make such a submission. It appears that the prosecutor will do so if the judge requests it, or if defence counsel has made such a submission. In Queensland, both prosecution and defence counsel are encouraged to make submissions regarding the appropriate range of sentences of

imprisonment.[71] Under the prosecutorial guidelines issued by the Office of the Director of Public Prosecutions, it is the duty of the prosecutor to ‘provide an appropriate level of assistance on the sentencing range’[72] by reference to ‘the sentencing schedules, the appellate judgments of comparable cases, changes to the maximum penalties and sentencing trends.’[73]

[69]See NSW Bar Rule 71; NSW Solicitor’s Rules A71.

[70]R v Weininger (2000) 159 FLR 238, [26] (Simpson J); R v Green (Unreported, New South Wales Court of Criminal Appeal, 29 September 1997, Grove and Newman JJ); R v Compton [2008] NSWSC 204; R v Glass (1994) 73 A Crim R 299.

[71]R v Maxfield [2002] 1 Qd R 417, [21] (Davies JA and Fryberg J); R v Causevic [2000] QCA 432 (McMurdo P, with Davies JA and MacKenzie J in agreement); R v Lewis; ex parte A-G (Qld) [2003] QCA 133, [18] (de Jersey CJ); R v Potter; ex parte A-G (Qld) [2008] QCA 91, [20] (Mackenzie AJA with whom Keane JA agreed).

[72]Item 43.

[73]Queensland Magistrates also receive the same assistance as to sentencing options and ranges of sentence. See Chief Magistrate Marshall Irwin, ‘Advocacy in the Criminal Jurisdiction: Pleas and Sentences in the Magistrates[‘] Court (speech delivered to the Bar Association of Queensland, Sanctuary Cove, 5 March 2006).

In the Northern Territory, submissions as to the range of sentences are allowed. According to the Guidelines issued by the Director of Public Prosecutions (NT), it is the duty of the prosecutor ‘to provide an appropriate level of assistance on the sentencing range.’[74] The Rules of Professional Conduct and Practice of the Law Society of the Northern Territory are to the same effect.[75] In a document entitled ‘Sentencing Principles,’ the Northern Territory Government states that the prosecutor may refer to the ‘tariff range’ and to evidence in support of that range. In Tasmania it is unclear whether the Crown can make submissions as to the range within a sentence type[76] but defence counsel frequently do so by reference to the standard range of sentences compiled in ‘Sentencing in Tasmania’.[77]
[74]Rule 16.2.
[75]Rule 17.57.
[76]Kate Warner, Sentencing in Tasmania (2^nd ed, 2002) [2.203].
[77]Ibid Ch 11–14.

In South Australia, the prosecutor does not normally make a submission as to the sentencing range. Such submissions have been permitted in Western Australia,[78] although it is not clear whether it is a recognised practice. In New Zealand, submissions on the appropriate range are commonly made by both prosecuting and defence counsel.[79] The New Zealand Law Reform Commission expressed the view that the prosecutor was under an obligation to inform the court as to the appropriate sentencing range.[80] In the United Kingdom, the Attorney-General’s Guidelines on the ‘Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise’ refer to the right of the prosecutor to make submissions as to the ‘appropriate sentencing range’. In Canada, prosecuting and defence counsel are expected to make such submissions as a matter of course.[81]
[78]Pop v The Queen (2000) 116 A Crim R 398, [20] (Wallwork J).
[79]R v Robinson [2007] NZHC 1323, [16]–[20] (Cooper J); R v Tuheke [2007] NZHC 1486 (Heath J) [23]–[31]. See also the explanatory note to the New Zealand Court System website on Sentencing.
[80]New Zealand Law Commission, Criminal Prosecution, Report No 66 (2000).
[81]Federal Prosecution Service, Deskbook, 20.3.3.1; Clayton C Ruby, Sentencing (6^th ed, 2004) 75-6.

Submissions on range in damages cases

There is an instructive parallel with the position regarding submissions to a judge or jury as to the appropriate award of damages in a libel or personal injuries action. In Victoria counsel are at liberty to make such submissions.[82] In Coyne v Citizen Finance Ltd[83] Toohey J (with whom Dawson and McHugh JJ agreed) expressed the view that there is much to be said for the judge indicating to the jury the range of damages he or she thinks appropriate so long as it is made clear that the decision is one for the jury. In the United Kingdom, however, it was the invariable practice until 1997 that neither counsel nor the judge would make any suggestion to the jury as to what would be an appropriate award. The objection was said to be that the proceedings might develop into an auction.[84] In Sutcliffe v Pressdram Ltd,[85] Russell LJ approved the following passage from the summing up by the trial judge:

Well, supposing I were to suggest a figure to you or a bracket. Supposing I were to say ‘If she succeeds what about giving her between so much and so much.’ Well there are two possibilities. One is that you would say that I was quite wrong and you would either give much more than I suggested or much less. Well now can you imagine what would happen then? The party that did not like it: the plaintiff if you have given much less, or the defendant if you have given much more than I suggested, would be off to the Court of Appeal saying ‘Well, look at that jury they were quite unreasonable. Here was this experienced judge suggesting a figure to them and they ignored it.’ You can see readily how that would happen. Supposing you did give the figure or very close to the figure that I suggested to you, well then you would have been wasting your time here on damages, you would simply be acting as a rubber stamp for me … So we look to you, as representatives of the public, applying the principles I have indicated, if you come to damages, to come to that figure.[86]

[82]Green Triangle Bark Processors Pty Ltd v Parker [2000] VSCA 22; De Reus v Gray (2003) 9 VR 432, [35]-[37] (Winneke P, with whom Ormiston and Charles JJA agreed); Project Developments v Mitchell [1996] 1 VR 213, 216.

[83][1990-1991] 172 CLR 211, 235.

[84]Ward v James [1966] 1 QB 273, 302 (Staughton LJ).

[85][1991] 1 QB 153.

[86]Ibid 190.

In 1997, this rationale was rejected and the making of such submissions was endorsed. In John v MGN Ltd,[87] the Court of Appeal said:

We have come to the conclusion however that the reasons which have been given for prohibiting any reference to figures are unconvincing. Indeed, far from developing into an auction (and we do not see how it could), the process of mentioning figures would in our view induce a mood of realism on both sides.
In personal injury actions it is now commonplace for the advocates on both sides to address the judge in some detail on the quantum of the appropriate award. Any apprehension that the judge might receive a coded message as to the amount of any payment into court has not to our knowledge been realised. The judge is not in any way bound by the bracket suggested, but he finds it helpful as a check on his own provisional assessment. We can for our part see no reason why the parties’ respective counsel in a libel action should not indicate to the jury the level of award which they respectively contend to be appropriate, nor why the judge in directing the jury should not give a similar indication. The plaintiff will not wish the jury to think that his main object is to make money rather than clear his name. The defendant will not wish to add insult to injury by underrating the seriousness of the libel. So we think the figures suggested by responsible counsel are likely to reflect the upper and lower bounds of a realistic bracket. The jury must of course make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.[88]

[87][1997] QB 586.

[88]Ibid 615.

The Court said that this ‘modest but important change of practice … would render the jury proceedings more rational and so more acceptable to public opinion’.[89] The decision recognises the assistance which can be provided by submissions which indicate the ‘bracket’ or range of options available in the circumstances of the case. The tribunal of fact is not bound by such submissions but, as the Court of Appeal recognised, they are likely to assist juries to reach more rational conclusions and, hence, reduce the number of appeals.
[89]Ibid 616.

The New South Wales Court of Appeal has expressed similar views. In Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan,[90] the Court was dealing with allegedly excessive award of damages by a jury. Mason P (with whom Heydon and Hodgson JJA agreed) said:

Notwithstanding denial in still authoritative High Court decisions of the 1960s, judicial determination of and appellate review of general damages awards are more than a little shaped by convention. In broad terms, appellate courts apply a tariff based upon accumulated general experience. The English Court of Appeal has recently revised guidelines on the topic. Failure to inform a jury of the limits beyond which their verdict is clearly liable to be set aside is inviting trouble that, in my opinion, outweighs the imperceptible educative value of a series of jury verdicts upon judicial thinking.
In this regard, civil juries are even worse off than the growing number of trial and appellate judges who lack extensive recent common law experience at the Bar. The most such judges can hope for is the acquisition of general knowledge downloaded imperceptibly from a series of particular exposures each of which must not be looked at individually without breach of prevailing orthodoxy laid down over a generation ago when things were very different. At least judges can call upon counsel to offer submissions as to a range of figures for general damages.[91]

[90](2001) 53 NSWLR 343.
[91]Ibid [56]–[57] (citations omitted; emphasis added). Special leave to appeal from this decision was refused by the High Court.

Conclusion

Whenever a judicial discretion is to be exercised, it is commonplace for counsel on both sides to make submissions as to how the discretion should be exercised, drawing attention to facts which counsel submit should support that particular exercise of the discretion. Such submissions are intended, and likely, to assist the Court in the exercise of the discretion.

At least since the advent of Crown appeals, it has been accepted that a prosecutor may be obliged to draw attention to the objective gravity of the offence, or to the aggravating circumstances that are said to exist, or to make a submission that mitigating circumstances relied upon by the offender should not be so regarded. Counsel on both sides make submissions as to how seriously the offence should be regarded and as to whether the offence should be placed at the bottom, middle or upper end of the scale of seriousness.[92]
[92]See, for example, R v Chengand Chan [1999] 73 SASR 502; R v Spiteri [1999] NSWCCA 3; Pavlic v The Queen (1995) 5 TasR 186; Penny v State of Western Australia (2006) 33 WAR 48; R v Daniel [1998] 1 Qd R 499.

As noted earlier, on an appeal against sentence on the ground that the sentence is manifestly excessive or manifestly inadequate, the parties almost invariably make competing submissions as to whether the sentence falls within, or outside, the permissible range of dispositions available to the sentencing judge. Only when the Court of Appeal is satisfied that the sentence falls outside that range may the Court intervene on such a ground.[93]
[93]AB v R (1999) 198 CLR 111, 130 (Hayne J).

Even where all the relevant sentencing factors are apparent, it is of little assistance for a submission to be made to the Court, whether at first instance or on appeal, which does no more than state that a sentence is within or outside ‘the range’ or that it is at one end or the other of ‘the range’. Such submissions will only provide sound guidance if the actual range is identified. The further observations of Eames JA in R v Bangard are particularly apposite here:

Sentencing is of course a task that places great emphasis on experience, but not all sentencing judges will be able to call on such experience. The task of determining the sentencing range can be daunting, even for the most conscientious judge. Ironically, the very fact that so many sentencing decisions are now reported or are available upon a search of the Internet can make the task of determining the relevant range more, rather than less, difficult.
In my opinion the courts should not discourage counsel from providing such practical assistance as [defence counsel] had demonstrated could have been provided to the judge in this case. The judge made it clear that he was inviting assistance in the exercise of his task; he was not inviting counsel to usurp his role. [94]
[94](2005) 13 VR 146, 152 [33]–[34].

The role of defence counsel

As we said at the outset, argument on these appeals was confined to the question of the proper role of the prosecution in assisting the sentencing court. The proper role of defence counsel was not addressed. Nothing we have said about the prosecution’s role should be taken as implying any view about what might be expected of defence counsel on the question of sentencing range. Examination of that question must await a case in which the point is raised and fully argued.

Prima facie, defence counsel is under the same duty to assist the court as is any other counsel. It is a duty ‘of assisting to do justice according to law’.[95] The question which will need to be addressed is what content is to be given to that obligation when a sentencing judge seeks assistance from defence counsel about sentencing range.
[95]Giannarelli v Wraith (1988) 165 CLR 543, 579 (Brennan J).

The practicalities

We do not overlook the Director’s concern that the reaffirmation of this aspect of the Crown’s obligation to the Court may impose additional burdens on the Office of Public Prosecutions (“OPP”). If that be so, it is simply the necessary consequence of securing the public benefit to which we have referred. We doubt, however, that the additional burden will be as great as is suggested.

It is undoubtedly correct that the Crown’s submission on range in a particular case must take into account all of the matters which properly go in mitigation of penalty. As the Director submitted, the prosecutor will often be unaware of the full extent of those matters until defence counsel has completed the plea in mitigation. That should not, however, prevent the prosecutor from considering in advance the question of range, having regard to the known circumstances of the offending, the criminal record (if any) of the defendant and the applicable sentencing principles. Ordinarily, consideration of those matters should be quite sufficient to enable at least a provisional view on range to be formed in advance of the plea hearing. If new material were advanced on behalf of the defence in the course of the plea, the prosecutor would then have two options. The first would be to do what counsel are often required to do in the course of a hearing, namely, to adapt or modify their submission in running. The alternative would be to seek an adjournment – which, typically, would not need to be very lengthy – to enable the new material to be considered and any consultation required within the OPP to take place.

As this Court made clear in R v S, what the Court requires, and the prosecutor should supply, is a submission on behalf of the Crown. The submission should be expressed accordingly. How the Crown’s position in a particular case is to be arrived at within the OPP is a matter of internal administration for the Director. If it is correct that ‘no machinery exists for the submission of an ex officio view’, then it will be necessary for some such machinery to be established. This should not, we would have thought, present any great difficulty. After all, every day in courts throughout Australia counsel instructed by Governments and statutory authorities make submissions reflecting the ‘ex officio’ view of the Government, department or agency in question.

The public interest to be served by submissions on range is of such importance that issues of administrative convenience could not conceivably stand in its way. If the OPP is not adequately resourced at present to enable this important duty to be discharged, then the public interest demands that additional resourcing be provided for that purpose. We would have thought that the additional resources would be more than adequately matched by the cost savings which flow when the incidence of appealable sentencing error is reduced.

How much precision?

One of the objections advanced by counsel for Ms MacNeil-Brown was that submissions nominating the outer limits of the available range in a particular case were misleading, because such limits could never be stated with precision. Reliance was placed on the following passage from the judgment of Buchanan JA in DPP (Vic) v Ross:[96]

In my view judicial references to a range of acceptable sentences are not to be taken literally. The essential question which arises when it is contended that a sentence is manifestly excessive or inadequate is whether the sentence could be imposed in the exercise of a sound sentencing discretion. The ‘range’ is a reference to the concept of a sentence falling within the limits of a proper exercise of the sentencing discretion. That is not to say, however, that the limits are capable of expression in precise numerical terms. References to range and limits amount to no more than a recognition that there is not one particular sentence which can be demonstrated to be correct.
Sentencing is not a mathematical process.[97] To specify the point at which a range of acceptable sentences begins or ends lends a misleading air of scientific precision to an exercise that cannot be precise. A sentencing judge is required to take into account all the relevant circumstances of the offence, the maximum sentence and relevant factors, such as prevalence of the crime, which are common, not to the particular offence in question, but to all offences of that type, as well as the character and antecedents of the offender. The relevant factors are to be instinctively synthesized.[98] In reviewing the performance of that task, I do not think it is helpful that counsel for an offender or the Crown express his or her opinion as to the precise point at which a sentence becomes manifestly excessive or inadequate, or his or her perception of the figure that is most likely to achieve a forensic objective and which would probably be based upon sentences imposed on other cases, where the circumstances of the offence and the offender were different.

[96](2006) 166 A Crim R 97, 106-7.

[97]Ryan v R (2001) 206 CLR 267, 278 (McHugh J); Pearce v R (1988) 194 CLR 610, 624 (McHugh, Hayne and Callinan JJ).

[98]See Wong v R (2001) 207 CLR 584, 611-12 (Gaudron, Gummow and Hayne JJ); Johnson v R (2004) 205 ALR 346, 354-5 (Gummow, Callinan and Heydon JJ).

We respectfully agree with his Honour that there is no precise upper limit beyond which a sentence would inevitably be held to be manifestly excessive nor, conversely, a precise lower limit below which a sentence would inevitably be held to be manifestly inadequate. For the reasons which his Honour gives, a submission positing the outer limits of the applicable range can never be – and therefore should not purport to be – more than an approximation or an indication. (We doubt, with respect, whether any sentencing judge would be likely to view it otherwise.) Everything we have said in these reasons about submissions on range should be so understood.

The first appeal: The Queen v Heather MacNeil-Brown

Ms MacNeil-Brown pleaded guilty to five counts of obtaining property by deception. The complainant in respect of each count was her employer, Price Waterhouse Coopers Australia. Between August 1999 and August 2005, Ms MacNeil-Brown was employed as an accounting services assistant in the corporate advisory and restructuring practice of the firm. Her duties were to assist in the daily activities of certain insolvency administrations under the control of the relevant partners. Her specific duties included opening new bank accounts, depositing receipts, processing payments, maintaining transaction records and printing cheques from the software system on request from partners.

Ms MacNeil-Brown’s employment was terminated following the chance discovery by one of the partners of her name in a list of undischarged bankrupts. An internal investigation was then initiated into apparent discrepancies in bank accounts on which she had been working. The investigation revealed that between January 2001 and July 2005, Ms MacNeil-Brown had made some 94 unauthorised cheque payments to accounts under her control. In all, over four and a half years, Ms MacNeil-Brown obtained by deception a total of more than $920 000.

That amount was broken up as follows:

·Count 1 (2001): $99 774.45;
·Count 2 (2002): $382 233.99;
·Count 3 (2003): $210 671.81;
·Count 4 (2004): $119 768.58;
·Count 5 (2005): $107 790.81.

The learned sentencing judge imposed a sentence of five years’ imprisonment on each of the five counts. He directed that three months of the sentence imposed on each of counts 2, 3, 4 and 5 be served cumulatively upon each other and cumulatively upon the sentence imposed on count 1, making a total effective sentence of 6 years’ imprisonment. A non-parole period of four years was fixed.
Ground 2

Four grounds of appeal were argued. We deal first with the ground (ground 2), which contends that the sentencing discretion miscarried ‘as a result of his Honour’s insistence that the Crown make a submission as to the appropriate sentencing range’.

On the plea, counsel for the defendant accepted that a term of imprisonment would be imposed on his client and provided to the judge what was described as ‘material in relation to sentencing of like offenders.’ Two documents were provided, both having been downloaded from the website maintained by the Judicial College of Victoria. The first was a table containing summaries of more than 20 Court of Appeal decisions, in the period 2004-07, dealing with sentencing for comparable offences (obtaining financial advantage by deception, obtaining property by deception and conspiracy to defraud). The second document was headed ‘High Value Offending’. It listed nine cases (eight from the Court of Appeal), identifying in each case the amount misappropriated and the sentence imposed. For reasons we have already given, this was exemplary conduct on the part of defence counsel. In aid of the submissions which he proposed to make, he furnished the judge with a body of comparable sentencing information. Counsel then identified for the judge which of the cases in the first table could, in his submission, be regarded as comparable to the case before the Court.

The Crown submitted to the judge that an immediate sentence of imprisonment should be imposed. The prosecutor drew attention to a variety of matters relied on in support of that submission. At the conclusion of the prosecutor’s submission, the following exchange took place

HIS HONOUR: What do you say about the range of sentence in light of R v S wherein the Court of Appeal says that the Crown should make submissions as to the appropriate range of sentence beyond which would constitute sentencing error? You have got here [defence counsel] producing a number of authorities.
PROSECUTOR: Your Honour, I’m in a position where I’m loathe to put anything standing here on my feet now, I haven’t sought instructions about that, I probably should have, your Honour, and I can.
HIS HONOUR: I will give you an opportunity to do so.
PROSECUTOR: It shouldn’t take too long.
HIS HONOUR: I will stand the matter down until after lunch.

Following the adjournment, the prosecutor informed the judge that his instructions were ‘inconsistent’ with what this Court had said in R v S. The following exchange then took place:

PROSECUTOR: … [I]t’s the Crown’s view that this is not an appropriate case to be putting forward applicable ranges of sentences from the Crown’s point of view. I can only reiterate the features that I referred to earlier this morning, in terms of the - - -
HIS HONOUR: Why is it the Crown’s point of view that it is not appropriate to observe the instruction of the Court of Appeal?
PROSECUTOR: Short answer is, Your Honour, instructions were sought before I had reference to this case, and instructions were sought not in relation to this – or not having had the benefit both from those that I sought the instructions from, and myself, about having read this case. In the Crown’s submission, your Honour, each case obviously turns on its own facts and it’s not a terribly helpful exercise to compare difference cases and different factual scenarios with this because, for that very reason, they’re all different.

The prosecutor acknowledged that, according to the judgment in R v S, ‘it would seem to be appropriate to put forward figures’.

HIS HONOUR: That’s what I’m encouraging you to do.
PROSECUTOR: I know, your Honour. The Crown is reluctant to do so.
HIS HONOUR: What if I give you some more time – I’ve got to consider this overnight anyway – till tomorrow morning?
PROSECUTOR: My instructions were pretty firm, your Honour.
HIS HONOUR: Who gave you the instructions?
PROSECUTOR: The Crown prosecutor … But that was in consultation with other Crown prosecutors, in fact over lunch, your Honour, and the consensus was it’s not appropriate to be putting forward figures.
HIS HONOUR: It’s not appropriate to comply with the Court of Appeal.
PROSECUTOR: No reference was made to this case, your Honour. We only printed that out after that consultation in fact.
HIS HONOUR: Perhaps you could take it back to [the Crown prosecutor] and say that this court would be assisted by the Crown complying with its duty, to make a submission as to a range of penalty.

At the conclusion of the day’s hearing, the judge made the following remarks:

I’ll give this further consideration overnight but in my view where we have a situation where the Director of Public Prosecutions appeals much more frequently than any of his predecessors, in my experience, and no doubt puts submissions to the Court of Appeal that judges of this court have erred in imposing manifestly inadequate sentences, surely he should be in a position to put, through his alter ego, in the person of your good self, what is an appropriate range of sentence and what would be a sentencing error by way of departure from that ambit. That’s all I’m asking.

We pause to interpolate that this statement accorded with the case law discussed earlier. The judge identified, quite correctly, that the Crown’s right of appeal carried with it a reciprocal obligation to assist the sentencing court.

The following day’s proceedings began with this further exchange:

PROSECUTOR: Your Honour, I’ve sought instructions, your Honour, and in a moment, your Honour, I will give you what the Crown says is a sentence below which has the potential to be out of range in terms of figures, your Honour.
Can I just say for the record, your Honour, that the Crown is reluctant to do so, that is to offer figures in cases such as these. The Crown is only doing this because your Honour has specifically requested it and indicated that you would be assisted by it. Of course, it’s the Crown’s obligation to assist the court.
The concerns that the Crown have in putting forward ranges such as these in cases in general is that those that instruct myself or other Crown prosecutors in court are not present to hear the facts and the plea material that your Honour hears and that the range of sentence or particular sentence very much depends upon the findings of fact that Your Honour makes in terms of aggravation and mitigation.
It’s for those reasons, your Honour, that the Crown submits that it should be only in the most rare of cases that it should be made to put forward actual figures.
HIS HONOUR: Yes.
PROSECUTOR: Your Honour, in this matter, having carefully considered it with a number of Crown prosecutors, the Crown submits that a sentence at the bottom, a non parole period or anything less than a three year period would raise concerns and would potentially be out of range and your Honour, implicit within that is that a sentence which can be suspended or partially suspended is out of range.
HIS HONOUR: Yes.
PROSECUTOR: And a head sentence needs to reflect the seriousness of this offence which we went through yesterday, your Honour, the persistence in it and prior conviction for something similar. If your Honour requires a range for that, I can give that.

The final relevant exchange was in these terms:

HIS HONOUR: You were going to tell me about the head sentence.
PROSECUTOR: Yes. Your Honour, if I can be more general, theoretically, of course, your Honour has 50 years to play with. Five counts, ten year maximums. Obviously it’s not 50 years that the Crown would be seeking.
Historically it seems from a look at some of the cases, your Honour, for large figures and the most serious examples of this type of offending the head sentence seem to head towards that ten year max if it was a simple one count presentment.
But, your Honour, this is a serious example but it’s not the most serious in terms of at least the figures. There’s examples there of $10m that were handed up yesterday and I think there was a nine year head sentence for that. But, your Honour, something less than about [twice] the non parole period range that I submitted earlier is also questionable in terms of potentially being out of range.

In our view, the Director’s concession was appropriate. This case is a useful illustration of why Crown submissions on sentence must never urge the imposition of a specific sentence. While, for the reasons discussed earlier, it was entirely appropriate for the judge to take the Crown’s submission into account in arriving at the sentencing decision, the imposition of a sentence closely approximating the figure nominated by the Crown did – unavoidably – create the appearance that the judge might have been unduly influenced by the position adopted by the Crown. In any case, the putting forward of a specific figure is wrong in principle, because there is no single correct sentence, and it is contrary to the function of a Crown submission, which should identify the legal limits within which the sentencing judgment can lawfully be exercised.

It follows that this ground of appeal succeeds. It is unnecessary, therefore, to consider the separate ground of manifest excess. It falls to this Court to re-sentence Mr Piggott.

Re-sentencing

As is apparent from the description set out above, this was a very serious offence. It was a sustained and cowardly assault, in company, of a defenceless victim. Piggott’s own counsel conceded on the plea that it was ‘brutal and unnecessary’.

On the plea, counsel for Piggott relied on two factors as mitigating the seriousness of the attack. One was the initial provocative behaviour of the victim, the other was the nature and extent of the injuries sustained. As to the first, we agree with the submission for the Director that such provocation as there was provided neither explanation nor excuse for most of what Piggott and the co-offender did to the victim.

Piggott repeatedly returned to his prostrate victim and viciously attacked him. Between those assaults [Piggott] had many opportunities to reconsider his initial resort to violence and desist. He did not. The assault was curtailed only because of the arrival of prison officers at the scene. The nature and extent of the assault was inherently very dangerous.

As to the victim’s injuries, the Director rightly concedes that they were not at the higher end of seriousness for this type of offence. But, as noted earlier, the injuries were serious enough for the victim to be in hospital for five days. Moreover, as the sentencing judge pointed out, and defence counsel properly conceded, the lack of very serious injury was ‘largely a matter of good luck … when your client is observed on the video kicking into someone who is on the ground.’

The Director relies on two factors as aggravating the seriousness of the assault. The first is that it occurred in a custodial setting:

Such offences are notoriously difficult to detect and/or prosecute because of the culture that permeates prisons. As occurred in this very case, witnesses are loath to intervene and do not report the incident to any person(s) in authority, and the victim is simply reticent to report the matter and/or to facilitate any prosecution of the offender.

Secondly, the Director relies on Piggott’s ‘formidable criminal record spanning nearly 20 years’. A significant number of the prior convictions are for offences of violence. Between 1992 and 2004 Piggott was convicted of causing injury intentionally (three counts), assaulting police (three counts), threat to inflict serious injury, causing the injury recklessly, unlawful assault (two counts) and assault with a weapon (two counts). These offences resulted in eight separate terms of imprisonment. Piggott received partially suspended sentences in 1997, 1998, 2000 and 2004 and, on each occasion, breached the suspended sentence.

On the plea, his counsel submitted that he had genuine prospects for rehabilitation. On the plea, and again on the appeal, this submission focused on Piggott’s relationship with his partner – of some three years duration as at the date of the plea – and the child of that relationship, born in January 2006. The Department of Human Services had initially been concerned about the welfare of the child, because both Piggott and his partner were known to be drug-dependent. The Department indicated that they would monitor the situation of the child closely and, if they saw a drug problem, the child would be taken away. Counsel relied on subsequent advice from the Department (October 2006) confirming the completion of its protective investigation in relation to the child and stating that protective services would not continue to be involved with the family.

The sentencing judge considered all of these matters, in detail, before stating

that she had ‘significant concern in relation to [the] prospects of rehabilitation’.[105] Her Honour went on:
I suspect that the road ahead is difficult as you have established and entrenched patterns of drug abuse and offending. However, the reality is that you will be released back into the community and it is in everyone’s interest that rehabilitation be achieved, and for that reason it must be fostered to the extent that that is appropriate given the other sentencing elements to which I must have regard.

[105]The Queen v Paul Wayne Piggott [2007] (Unreported, Hannan J, 3 May 2007) [27].

Having regard to all the circumstances, we are not persuaded that any different sentence should have been imposed. Accordingly, the appeal will be dismissed.

BUCHANAN JA:

I have had the considerable advantage of reading the draft judgment prepared by the President, Vincent and Redlich JJA.

I agree with the disposition of the appeals which their Honours propose. I wish only to make some observations as to the utility of counsel specifying the length of sentence above or below which no appropriate sentence could be passed.

In my view the question turns largely upon the nature of the discretion exercised by a sentencing judge.

The task of a sentencing judge is complex. The discretion which he exercises is unlike other judicial discretions, due to the number of factors which inform the discretion, the relevant factors or their combination differing from one case to another and being, for the most part, incommensurable.

The sentencing judge must find the facts which constitute and are relevant to the commission of the offence in order to determine the gravity of the offence and the part played by the offender. The judge must find the facts which explain why the offence was committed and which constitute the offender’s reaction to it in order

to assess the offender’s culpability. The judge must identify and evaluate mitigating and aggravating circumstances attending the commission of the crime. The judge must find the facts relating to the antecedents and character of the offender. The judge must make a finding as to the nature and degree of harm to the victim of the crime. The judge must weigh circumstances such as a plea of guilty and prior convictions. In particular cases the sentencing judge must make findings as to matters such as the offender’s state of health and the effect of imprisonment upon the offender’s family and dependents. In other cases the judge must make findings as to the mental condition of the offender, the part which it played in the commission of the crime, and the likely effect of imprisonment upon the offender. In the light of those findings the judge must determine whether and to what extent considerations such as general and specific deterrence and denunciation are to be moderated. The judge must determine the offender’s prospects of rehabilitation. In the light of the findings and bearing in mind the maximum penalty prescribed for the offence and current sentencing practices, the sentencing judge must determine how the objects set out in s 5(1) of the Sentencing Act 1991 (Vic) are to be achieved.

The myriad facts identified, found and classified by the sentencing judge are to be intuitively synthesised, that is, considered, in the light of general sentencing considerations, for the purpose of assessing their contribution to the determination of an appropriate sentence. This synthesis is generally not to be done mechanically by arriving at a starting point and adding or subtracting a period of time attached to

each relevant sentencing factor.[106] In Wong v R[107], Gaudron, Gummow and Hayne JJ rejected a mathematical approach to sentencing, saying:
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance all other factors substantially unaltered, may be quite wrong. We say “may be” quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.

Similarly, in Markarian v R[108] McHugh J said:
A sentence can only be the product of human judgement, based on all the facts of a case, the judge’s experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes in authoritative judgments. … The circumstances of criminal cases are so various that they cannot be the subject of mathematical equations.

[106]Although there may be simple cases in which ‘some indulgence in an arithmetical process will better serve’ the ends of transparency and accessible reasoning. Markarian v R (2005) 228 CLR 357, [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[107](2001) 207 CLR 584, [75].

[108](2005) 228 CLR 357, [52]. See also R v Williscroft [1975] VR 292, 300 (Adam, Starke and Crockett JJ).

The expression of counsel’s opinion as to the outer limits of an acceptable range of sentences in my view is of no utility to a sentencing judge embarking on the complex exercise I have endeavoured to describe. Even if counsel specifies the facts which counsel has assumed and identifies all the mitigating and aggravating factors counsel has considered,[109] it is not possible to explain the part played by those facts and factors in arriving at the figures advanced by counsel without resorting to the mathematical approach eschewed by the High Court. In this respect the specification of the limits of a range is unlike a legal submission, which usually is capable of being broken down into its constituent elements.
[109]And is able to convey precisely the degree to which counsel has taken into account factors such as remorse and prospects of rehabilitation, which may be present to a greater or lesser extent.

A further consideration affecting the utility of a range specified by counsel derives from the role of counsel in our system of law. Subject to the qualification that the prosecutor is required to act fairly, counsel is expected to advance the case for the client, to marshal all the arguments in favour of a particular result, rather than evaluating a case in an entirely impartial manner. Counsels’ function is to advance opposing points of view. Accordingly, it is to be expected that the range advanced by defence counsel will be lower than the range advanced by the prosecutor. To require counsel to nominate what counsel considers to be the limits of a range is to seek to enlist counsel as a surrogate judge. The opinions of counsel are simply irrelevant. As King CJ said in R v Malvaso,[110] the court ‘must never be

influenced by the attitudes or opinions as distinct from the arguments’ of prosecution and defence.

[110](1989) 40 A Crim R 123, 129.

Even less likely to be helpful is a statement of the opinion, not of counsel appearing for the Crown in the case before the court, but of the Office of the Public Prosecutor. An individual barrister can at least attempt to make transparent his view as to a range of sentences by specifying the facts he has taken into account.[111] The view of the Office of Public Prosecutions, on the other hand, is opaque; it is the view of an unknown number of persons whose attention to and knowledge of the relevant facts is also unknown.
[111]Accordingly, the specification of a range of possible sentences will require much more than the nomination of figures. In order to give substance to the figures and enable them to be evaluated, counsel must catalogue in detail all the facts and sentencing factors counsel has considered and convey the relative importance counsel has assigned to them.

In my opinion, counsel can best assist a sentencing judge, not by advancing what they consider to be sentences at the lower or upper limits of a sound sentencing discretion, but by making submissions as to the existence and nature of aggravating and mitigating circumstances and providing some[112] guide to the manner in which other judges have approached like cases by supplying sentencing statistics and citing passages from decided cases which bear upon aspects of the instant case. The synthesis of the raw material is the task of the sentencing judge, not counsel.

[112]See R v Giordano [1998] 1 VR 544, 549 (Winneke P); R v Bangard (2005) 13 VR 146, [39]–[40] (Nettle JA); R v Carey [1998] 4 VR 13, 18 (Winneke P).

KELLAM JA:

In the first of the cases before us, R v MacNeil-Brown, the sentencing judge requested that the prosecution make submission as to the ‘appropriate range of sentence beyond which would constitute sentencing error’. The prosecutor sought time to seek instructions. The next day the prosecutor informed the sentencing judge that he had sought instructions and that he intended to inform the judge of ‘what the Crown says is a sentence below which (sic) has the potential to be out of range in terms of figures’.

The prosecutor then said:

Can I just say for the record, your Honour, that the Crown is reluctant to do so, that is offer figures in cases such as these. The Crown is only doing so because your Honour has specifically requested it and indicated that you would be assisted by it. Of course it is the Crown’s obligation to assist the court. The concerns that the Crown have in putting forward ranges such as these in cases in general is that those who instruct myself or other Crown prosecutors in court are not present to hear the facts and the plea material that your Honour hears and that the range of sentence or particular sentence very much depends upon the findings of fact that your Honour makes in terms of aggravation and mitigation.

Having expressed such reluctance, the prosecutor submitted that a non-parole period of less than three years’ imprisonment might be ‘outside the range’ and that a head sentence of less than twice the non-parole period would be ‘questionable’ in terms of potentially being out of range. The appellant was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years being fixed.

The principal issue arising before us on that appeal is whether his Honour’s sentencing discretion miscarried as a result of his insistence that the prosecution make a submission as to the appropriate sentencing range. For the reasons set out below I am of the view that his Honour’s sentencing discretion did miscarry.

In the second appeal before us, R v Piggott, the issue of what is appropriate in terms of the prosecution making submissions as to the sentence to be imposed arose in different circumstances. In the course of the plea defence counsel submitted that the sentence to be imposed should be three years’ imprisonment with a ‘portion to be served and a portion suspended’. No doubt counsel settled upon a head term of imprisonment of three years because that is the maximum term of imprisonment which permits a partially suspended sentence. In response to this specific sentencing submission, the judge told the prosecutor that she would be interested in the ‘Director’s view in relation to the same’. An adjournment followed. During that adjournment the prosecutor obtained instructions from a person who as he told the judge was ‘probably the most senior person who was available’. The prosecutor soon thereafter informed her Honour that the view of the person with whom he had consulted was that ‘a head sentence of six years with a four minimum would be about right but three years, even as a non-parole period, would be manifestly inadequate’. The appellant was sentenced to five years and ten months’ imprisonment with a minimum of three years and nine months’ imprisonment to be served before being eligible for parole.

The appellant, Paul Piggott, appeals his sentence on three grounds:

1. The sentence is manifestly excessive.
2.A miscarriage of justice was caused by virtue of the prosecutor urging upon the learned sentencing judge that she impose a sentence of a specified length.
3.The learned sentencing judge erred by fettering the exercise of her discretion in receiving and acting upon a submission by the prosecutor that she impose a period of imprisonment of a specified length.

Upon the hearing of this appeal, the Director of Public Prosecutions conceded that the ‘sentencing indication’ given by the prosecutor should not have been made. The Director conceded that ‘the process by which the sentence was determined is capable of giving rise to considerable disquiet’. The concession was made before us properly. I have no doubt that it is not appropriate for either the defence, or the prosecution, to suggest a precise period of imprisonment as being the appropriate sentence to be imposed. Accordingly in my view ground 2 must succeed. That said however, and for the reasons stated by Maxwell P and Vincent and Redlich JJA in their judgment, I do not conclude that a different sentence should have been passed and for that reason I would dismiss the appeal.

I return to the appeal in R v MacNeil-Brown. I deal first with the second ground of appeal, that the sentencing discretion miscarried as a result of his Honour’s insistence that the Crown make a submission as to the appropriate sentencing range. As stated above, I am of the view that this ground succeeds. The reasons why I so conclude are as follows.

There can be no argument, as the Director of Public Prosecutions conceded readily before us, other than that a prosecutor has a duty to assist the Court. However I do not consider that a sentencing judge is in any way assisted by having the prosecution suggest a range of sentences which it submits is applicable to the case under consideration. I do not agree that a sentencing judge should require counsel to ‘assist’, nor that counsel should purport to assist by providing an estimate of the ‘sentencing range’ available in the particular case.

It is the judge who exercises the sentencing discretion, and not counsel. It is the judge who must make the necessary findings of fact. It is the judge who has the obligation to determine what weight should be given to the facts so found. The sentencing judge has to form a view as to the gravity of the offence and the part played by the offender. The judge has to determine not only what happened but how and why it happened. The judge has to determine the culpability of the offender. The judge has to find and articulate whether or not there are factors of aggravation. The judge must make a finding as to the harm suffered by the victim. The judge must consider the personal factors relevant to the offender and make findings as to factors of mitigation. The judge must consider the weight of each of those factors. Often the judge must form a view as to how burdensome the sentence might be for the particular offender in the light of factors, such as the prisoner’s health, family issues and employment. The judge must give consideration to all of the above matters, and sometimes more, in the context of what is required to achieve the sentencing goals of general deterrence, denunciation, specific deterrence, rehabilitation and just punishment. Appropriate consideration of all of the above factors is required before the determination by the judge of a just sentence. The ultimate sentence to be imposed involves the exercise of a judicial discretion, which is the result of an ‘intuitive synthesis’ of all the relevant facts, circumstances and sentencing principles. The exercise of that discretion is the function of the judge and the judge alone. It is not the function of counsel. Neither counsel for the prosecution nor counsel for the defence will have examined all of the relevant factors with the same scrutiny and impartiality prior to the plea hearing. Nor should they be expected to do so, for it is not their function. It is difficult to see how counsel on either side by quoting a range of head sentences and a range of non-parole periods could provide a considered and impartial view which would be of any assistance at all to a judge whose duty it is to synthesise all of the relevant factors intuitively. The difficulty in sentencing is not the assessment of an appropriate range. It is the determination of the correct sentence in all the circumstances which creates difficulty for sentencing judges. A submission as to range should not be requested by a judge, nor should it be made by counsel, because, upon proper analysis, that submission is of no assistance to the judge in performing the task to be undertaken by him or her.

The lack of usefulness in having the prosecution make such a submission as to range is demonstrated by the nature of the task of sentencing which I have set out above. It is clear from a number of authorities that the exercise of the sentencing discretion involves value judgements with no opinion being uniquely right.[113] Having undertaken the intuitive synthesis required, the sentencing judge forms an opinion as to the correct sentence to be imposed and sentences accordingly. As pointed out above, I consider it to be highly unlikely that the prosecutor will have, or indeed will be able, to accord the appropriate consideration to the sentencing process which is required of the judge. I agree with the submission of the Director that the view of the individual prosecutor in such circumstances would be irrelevant, it being no more than an expression of the opinion of a prosecutor who has determined what submission should be made as to the range of sentences applicable in a particular case. I do not agree that such a submission is a submission of law. Indeed, if I am incorrect in that regard, and such a submission can be seen as a submission of law it would be incumbent upon the sentencing judge to give reasons why such a submission should be accepted or rejected. That is not a burden which should be imposed on sentencing judges who are engaged in a process of intuitive synthesis.
[113]DPP v McMaster [2008] VSCA 102, [63]–[64] (Ashley JA).

However, in addition to the fact that in my view such a submission is of no assistance to the sentencing judge, there are a number of other matters of serious concern which arise by reason of the suggestion that judges should be entitled to require the prosecutor to nominate a range of appropriate sentences. The first such concern is that, at the very least, such a requirement would have the perception of an unwarranted and improper intrusion upon the sentencing discretion. Indeed, the requirement that the prosecution state such a range would be a distraction from the central task of a sentencing judge. As a matter of principle, it would be wrong for such a distraction to intrude upon the sentencing task of the judge.

There are other difficulties raised by the proposal. Our entire adversarial system is based upon the premise that a judge will be assisted by competing submissions from both sides and will be able to decide impartially which of the submissions is to be preferred. However a request by a judge to the prosecutor to nominate the range of appropriate sentences places defence counsel in an invidious position. The responding submission to such an invitation by the judge should not be made without appropriate instructions, in the case of the Crown from the responsible Crown prosecutor and in the case of the defence, from the prisoner. As a matter of practicality it is likely that the defence would have difficulty in obtaining such instructions. The playing field would therefore be most unequal. No such difficulty pertains if the assistance given to a judge by the prosecution and by defence counsel is not by reference to a range of possible sentences appropriate to be imposed but by reference to sentencing statistics and other decided cases, to which matter I will return.

Furthermore, even if defence counsel is able to obtain instructions to respond to the submission of the prosecutor in a meaningful manner, it is likely that any such submission would be lower than the range of sentences proffered by the prosecution. I agree with the submission made by the Director that such a circumstance may lead to a perception by the media, victims and the public that what is taking place is a bidding process akin to an auction. A further unfortunate perception may be created in circumstances where the prosecution makes a submission as to the appropriate range of sentences to be imposed and the judge imposes a sentence either outside, or at the lower end of the range. Over recent years there have been a number of cases where, after plea but before sentence, the media has urged that a particular sentence be imposed. A submission by the prosecution as to the appropriate range of sentences to be imposed may well create expectations amongst the media, the public and victims as to the likely result of the sentencing process, which expectations may not be met by the sentence imposed by a judge in handing down sentence. The risk of public misunderstanding as to the nature of the sentencing process is significant if as a matter of routine, the prosecution is to make submissions as to what it submits is the appropriate range of sentences. Furthermore, in the event that both the prosecution and the defence make similar submissions as to the appropriate range the perception that there has been a ‘plea bargain’ may well arise.

In addition, it is difficult to see how the submission of appropriate range of sentences by the prosecution will ensure consistency in sentencing and reduce the number of appeals. It would, of course be an abdication of the responsibility of the sentencing judge for that judge to fix a sentence within the submitted range if the judge considered it inappropriate. Yet if the judge sentenced outside that range, it requires little prescience to see that that circumstance would likely become a ground of appeal. This demonstrates not only the lack of utility of the proposal but also its deleterious character.

It is appropriate to deal with the submission made by the Director that the making of submissions specifying an appropriate range of sentences would create unreasonable demands on the prosecution’s service and would require significant extra resources and impose practical difficulties of considerable consequence. Although, as I have stated, I do not consider that the submission of such a range of sentences would be of assistance to sentencing judges and for that reason believe it is unlikely that experienced sentencing judges would seek such assistance, once this course has been encouraged and sanctioned by this Court the prosecution will be required to prepare for every plea hearing on the basis that the sentencing judge may make such a request. I do not discount the burden that that will impose on the prosecution service nor the risk that adjournments will be required in order for briefed prosecutors to seek further instructions in the light of material produced on a plea. By way of one example only, it is commonplace for psychiatric reports to be produced by the defence at or shortly prior to a plea hearing. Such reports may well contain material which by reason of the principles in R v Verdins[114] calls for serious reconsideration of the instructions given to the prosecutor previously as to the appropriate range. Other examples of circumstances whereby the need for adjournment will arise are not difficult to imagine. I have no doubt that the Director’s concerns expressed before us as to the extra resources necessary to enable such submissions to be made routinely are justified. The resources of the DPP might not be of relevance if what was in issue was a matter of high principle. However, in the circumstances under consideration I am of the view that it is a matter of serious concern that the extra burden to be imposed results in little benefit.
[114](2007) 16 VR 269.

I return to the question of what assistance should be given to a sentencing judge. In recent years sentencing statistics have become more detailed, contemporaneous and useful. A sentencing judge should be provided with such statistics as are submitted by either side to bear some relevance to the circumstances before the Court. Of course those statistics will do no more than show general trends but nevertheless they may well be of benefit to a sentencing judge. Obviously any decision of the Court of Appeal bearing upon relevant sentencing practices will be of assistance to a sentencing judge. In addition, other sentences, particularly those dealt with by the Court of Appeal, will be of considerable assistance to the judge if the circumstances under which those sentences were imposed are provided to the judge. For many years it has been the practice of the Commonwealth Director of Public Prosecutions to provide sentencing judges with the details of previously decided cases setting out relevant circumstances such as a plea of guilty, the amount involved, and the period of time in question in cases involving social security fraud. Similar information has been provided by the Commonwealth Director of Public Prosecutions to sentencing judges in relation to drug importation cases. Likewise, in my experience, in Victoria it has been the practice of the State Director of Public Prosecutions to provide detailed information relating to other sentences in cases of defalcation by a solicitor. My own experience is that the provision of such material is of considerable assistance in the formulation of the appropriate sentence by intuitive synthesis. It is that raw material which should be placed before the judge, not the opinion of a prosecutor as to where that raw material leads.

However, satisfied as I am that ground 2 should succeed, for the reasons expressed by the President, Vincent and Redlich JJA, I do not consider that any different sentence should be imposed. Accordingly the appeal should be dismissed.

- - -

[2008] VSCA 190

24 September 2008