The High Court of Australia in a recent decision1  held by a majority that the sentencing judge's refusal to receive the prosecution's submission on the available range of sentences was not unfair and did not amount to a failure to take into account a relevant consideration in sentencing the offenders.

These findings are relevant to sentencing hearings involving a prosecution for breaches of Victorian occupational health and safety legislation.

Two applicants pleaded guilty in the Supreme Court of Victoria to drug offences following discussions between their lawyers and the prosecution. In those discussions, the prosecution expressed a view on the range of sentences.

At the sentencing hearing, one of the applicants was sentenced to life. The other applicant was sentenced to 26 years' imprisonment. The applicants appealed to the Court of Appeal on the basis that the sentencing hearing was unfair because the sentencing judge stated at the outset that she did not seek, and would not receive, any submissions from the prosecution on what range of sentences she could impose on the applicants and the sentencing judge failed to take into account a relevant consideration in sentencing. The Court of Appeal rejected these arguments. The applicants sought special leave to appeal to the High Court. The High Court dismissed the appeals.

The majority held2  "The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts to yield the sentences to be imposed." 

In the decision of R v MacNeil-Brown3, a majority of the Court of Appeal held that "the making of submissions on sentencing range is an aspect of the duty of the prosecutor to assist the court". Following this decision, a practice developed in Victoria of a sentencing judge asking the prosecution to make a submission as to the available range of sentences. The High Court held"To the extent MacNeil-Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled." This practice is wrong in principle and should cease.

Lessons for Accused  

  • A submission by the prosecution on the available range of sentences is a statement of opinion.   
  • The High Court of Australia found that the practice of prosecuting counsel providing submissions on the available range of sentences is wrong in principle.  
  • It is not procedurally unfair for a sentencing judge to refuse to receive submissions about the available range of sentences.  
  • The accused should not rely on the opinion of prosecuting counsel about the likely sentencing range in making a decision about whether to enter a plea of guilty to breaches of the Victorian occupational health and safety legislation.