Sentencing is the Job of Judges 2014

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In the recent High Court decision Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 the High Court considered another aspect of the sentencing process: does the prosecution have any role in informing the judge about what sentence should be imposed? A practice has grown up following the decision of the Victorian Court of Appeal in R v MacNeil-Brown for the prosecutor to “assist the court” by making submission about the “available range” of sentences.

The answer according to the High Court is an emphatic “no”: the prosecutor should not make submissions. This is because a statement about the range of sentences would be a statement of opinion, not a submission of law. According to the majority judgment “Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment …The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process”. If the judge sentences wrongly then an appeal court can correct it, it is not for the prosecution to tell the judge what to do.

According to the separation of powers doctrine, which is fundamental to the rule of law, the role of parliament and of the judiciary are very separate. Parliament passes law which can set parameters around the sentencing process, but judges pass sentences on individuals, taking into account their individual circumstances.

The changes to NSW criminal law that now require judges to sentence those people convicted of an assault causing death to a minimum eight years in gaol if the person was intoxicated at the time has stirred up debate about the roles of parliament and the judiciary in the sentencing process.

Some other interesting reading on this case:

• Melbourne University’s excellent blog ‘Opinions on High’ on this case and many others: Barbaro v The Queen; Zirilli v The Queen
• Sentencing Advisory Council blog entitled ‘High Court Decision will change Victorian sentencing practices‘
• And for some discussion of select quotes from the judgment see quis custodiet ipsos custodes‘ blog on this case.

~ Kate

Kate Burns is RoLIA’s Chief Executive Officer. Join the discussion about rule of law issues on Twitter @RoLAustralia.