Barbaro v The Queen

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Wig in the courtroom

It has become quite common in criminal cases for the prosecution to make submissions to the judge about what they think should be the appropriate sentence for an offence.

However, a recent ruling by the High Court in Barbaro v The Queen [2014] has put an end to this, finding that the prosecution no longer has the power to make submissions or voice any other opinion about what an offender’s sentence should be.

Previously, the Court of Appeal had held that ‘the making of submissions on sentencing range is an aspect of the duty of the prosecutor to assist the court.’ This gave rise to a practice where the judge in a particular case would ask the prosecution for an appropriate ‘sentencing range.’ For example, the prosecution might tell the judge that they think a prison term of five to seven years would be suitable in the circumstances.

This judgment has now been overturned, with the High Court finding that a sentencing range proposed by the prosecution is nothing more than an ‘opinion’ which should not be taken into account by the court.

Preventing the prosecution from making submissions on an offender’s sentence might sound favourable at first glance – after all, it’s not unreasonable to think that in serious criminal cases, the prosecution will generally want to impose the harshest penalties possible. For example, following public outrage against the sentence in the case of Kieran Loveridge, who ‘coward punched’ Thomas Kelly in mid-2012, the prosecution criticised the 6-year sentence as being ‘manifestly inadequate.’ The DPP immediately appealed the sentence on the grounds that it was too lenient.

Preventing the prosecution from making submissions on an offender’s sentence in such a case would arguably only benefit the defence, as it would allow the judge to determine a sentence without any external influence.

However, in some cases, the ability of the prosecution to make submissions on sentence can actually benefit the defence – especially when the sentence proposed by the prosecution is more lenient than that handed down by the judge, as was the case in Barbaro v The Queen.

Pasquale Barbaro and Saverio Zirilli were each charged with trafficking a total of 16.2 million tablets of MDMA and 100kg of cocaine. They pleaded guilty to the offences after the Commonwealth Director of Public Prosecutions told them that they would be looking at a total of 32 to 37 years imprisonment in the case of Mr Barbaro, with a non-parole period of 24 to 28 years, and a total of 21 to 35 years in the case of Mr Zirelli, with a non-parole period of 16 to 19 years.

After being informed of this sentencing range by the prosecution, Barbaro and Zirelli also admitted being involved in three further serious offences, in the hope that their honesty would be taken into account by the sentencing judge.

Unfortunately for Mr Barbaro, the judge refused to consider submissions by the prosecution on the appropriate sentencing range.

He ended up with a term of life imprisonment, with a non-parole period of 30 years – much harsher than the 32 to 37 years proposed by the prosecution. Mr Zirilli did not fare much better, and was sentenced to 26 years imprisonment, with a non-parole period of 18 years.

Obviously unhappy with this outcome, Barbaro and Zirelli appealed their case to the High Court on two grounds.

Firstly, they argued that they only pleaded guilty to the charges and admitted taking part in the other offences after considering the sentencing range that was put forth by the prosecution. The High Court quickly rejected this argument, saying that it is up to the accused person alone to decide whether or not to plead guilty, and they should not be influenced by an expected sentencing range. In situations where the prosecution proposes a sentencing range, it should be taken as nothing more than an opinion, because it is solely up to the judge what sentence he or she imposes.

Secondly, they argued that they had been disadvantaged by the court’s failure to consider the prosecution’s sentencing range. However, the High Court ruled that the prosecution’s submissions on what would be an acceptable sentence were nothing but an opinion, and they should not be permitted to make such statements in the future.

The result of this case is that prosecutors can no longer propose a sentencing range to the judge. However, both the prosecution and the defence will still be able to present to the court statistics and other evidence about the types of sentences that offenders in similar cases have received. This material can still be taken into account by the judge in handing down a sentence.

At the end of the day, the position has now been clarified by the High Court – judges alone will determine the sentence, and prosecution opinions about what an appropriate sentence should be will be taken to be just that – an opinion.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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