Barbaro v The Queen, Zirill v The Queen [2014] HCA 2

Main issue: Sentencing


Two applicants pleaded guilty in the Supreme Court to drug offences following discussions between their lawyers and the prosecution in which 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 holding that:

"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."