Who should read this

Local Government In-house Counsel and Compliance Officers

Things you need to know

Prosecutors will once again be able to make submissions on penalty.

On 19 April 2016 the Queensland Parliament passed laws to reinstate the abilty of courts in criminal proceedings to receive submissions from both the prosecution and defence on an appropriate sentence or range of appropriate sentences to be imposed on an offender. This amendment is a positive step in levelling the ‘playing field’ with respect to penalties imposed in relation to unlawful development and environmental harm.

Background

Since the High Court decision in Barbaro & Zirilli v The Queen [2014] HCA 2 (Barbaro) in February 2014, prosecutors and defendants in criminal proceedings have been prevented from making submissions to the court in relation to an appropriate sentencing range.

Prior to Barbaro, it was common practice for prosecutors to make submissions on an appropriate sentence or sentence range to assist the court. Depending on the offence, this may have included custodial or monetary penalties.

This practice allowed for ‘plea deals’ between the defence and prosecution where a guilty plea would be entered on the basis that submissions would be made seeking a penalty within an agreed range. Of course, the prosecution would inevitabily make submissions that the appropriate penalty would fall at the higher end of the agreed range, while the defence would submit for a penalty at the lower end of the range.

Since Barbaro, parties have been prohibited from making submissions to the court in relation to penalty and have effectively been limited to assisting the court with the provision of comparable cases.

The Bill

The Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015 (Bill), which was passed on 19 April 2016 but has not yet been assented to, will amend section 15 of the Penalties and Sentences Act 1992 (Qld) to allow a court to receive submissions from both parties as to what they consider to be the appropriate sentence or sentence range for the court to impose. This will affect all criminal sentencing including in relation to offences under the Sustainable Planning Act 2009 (Qld) and the Environmental Protection Act 1994 (Qld).

Importantly, the sentencing judge is not bound to impose a penalty within the range submitted by either party and will still exercise his or her discretion in sentencing an offender.