Criminal Law – The Role of The Judge and of The Prosecution

On Friday 25 July 2014 Stephen Johnson AAP via Yahoo!7 News reported that: “On Friday [25 July 2014], Treasurer Tim Nicholls, a former solicitor, suggested judges had a duty to help the government tackle gang and drug-related crime.”

My immediate response was that Treasurer Tim Nicholls does not understand the role of Judges. They interpret & apply the law. I then reflected upon a recent criminal law matter decided by the High Court of Australia.

On Wednesday 12 February 2014 the High Court of Australia gave judgment in a criminal law matter (Barbaro -v- The Queen; Zirilli -v- The Queen [2014] HCA 2) in which the role of the Judge and of the prosecution was discussed. Below I have extracted what in my submission are salient portions of the joint judgment of their Honours French CJ, Hayne, Kiefel and Bell JJ on that topic.

The Role of the Judge and of the Prosecution
29 The practice countenanced by MacNeil-Brown assumes that the prosecution’s proffering a statement of the bounds of the available range of sentences will assist the sentencing judge to come to a fair and proper result. That assumption depends upon the prosecution determining the supposed range dispassionately. It depends upon the prosecution acting not only fairly (as it must) but in the role which Buchanan JA rightly described 1 as that of “a surrogate judge”. That is not the role of the prosecution.

30 As Gleeson CJ noted 2, when Chief Justice of New South Wales, it is common, when leniency is sought for an offender who intends to assist, or has assisted, the authorities, that the argument in favour of leniency comes from both the prosecution and the offender. In those circumstances “it is understandable that [the prosecuting authorities] regard it as advancing the interests which they represent to see that such assistance is suitably and publicly rewarded” 3. In such a case, there is “usually no-one to put an opposing or qualifying point of view” and the sentencing judge “must be astute to ensure that [the court] is being given accurate, reliable, and complete information concerning the alleged assistance and the benefits said to flow from it”  4. And in such a case, the prosecution may have a view of the available sentencing range which gives undue weight to the assistance which the offender has given or promised.

31 Similar considerations arise in cases, such as these, where pleas of guilty avoid very long and costly trials. It is again in the interests of those whom the prosecution represents to see that the utilitarian value of such pleas is suitably and publicly rewarded. And again, the offender will not be heard to submit to the contrary. But in this kind of case, too, the prosecution may have a view of the available sentencing range which gives undue weight to the avoidance of trial.

32 In either of the cases described, the prosecution forms a view which (properly) reflects the interests that the prosecution is bound to advance. But that view is not, and cannot be, dispassionate.

33 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 a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution’s view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.

The Sentencing Task
38 If a sentencing judge is properly informed about the parties’ submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range. If the judge is not sufficiently informed about what facts may or should be found, about the relevant principles or about comparable sentences, the prosecution’s proffering a range may help the sentencing judge avoid imposing a sentence which the prosecution can later say was manifestly inadequate. But it will not do anything to help the judge avoid specific error; it will not necessarily help the judge avoid imposing a sentence which the offender will later allege to be manifestly excessive. Most importantly, it will not assist the judge in carrying out the sentencing task in accordance with proper principle  5 .

39 What is more, unless the sentencing judge gives some preliminary indication of the sentence which he or she intends to impose, there can be no occasion for the prosecution to anticipate possible error and make some correcting submission 6. Even in a case where the judge does give some preliminary indication of the proposed sentence, the role and duty of the prosecution remains the duty which has been indicated earlier in these reasons:

1. To draw to the attention of the judge what are submitted to be the facts that should be found;
2. The relevant principles that should be applied; and
3. What has been done in other (more or less) comparable cases.

It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall. (My editing for emphasis)

40 The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. 7

41 As the plurality pointed out  8 in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect 9. And as each of Buchanan JA and Kellam JA rightly observed 10 in MacNeil-Brown, the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.

The Independence and Impartiality of the Courts, the Judiciary and the Judicial Process
In relation to the issue of the independence and impartiality of the Courts, the judiciary and the judicial process, Dr Gabrielle Appleby, Senior Lecturer, Adelaide Law School at the University of Adelaide said:
• “the High Court has found that state courts must still maintain a number of characteristics of independence and impartiality to continue to fit the constitutional description of courts.”
• Laws that compromise “the independence and impartiality of the state judiciary or the judicial process” can be found to be unconstitutional.

Conclusion
It is the task of the Sentencing Judge to:

• Seek consistency in the application of relevant legal principles in sentencing offenders;
• Have regard to what has been done in other cases;
• Consider the unifying principles which the range of sentences in other relevant cases both reveal and reflect;
• Synthesize the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases.

In my submission as criminal jurisprudence currently stands in Queensland judges do not have “a duty to help the government tackle gang and drug-related crime.” That role stops with the police and the prosecution. Imposing such a duty upon judges compromises the independence and impartiality of the Courts, the judiciary and the judicial process.

1. R -v- MacNeil-Brown (2008) 20 VR 677 at 710 (128) 
2. R -v- Gallagher (1991) 23 NSWLR 220 at 232 
3. R -v- Gallagher (1991) 23 NSWLR 220 at 232 
4. R -v- Gallagher (1991) 23 NSWLR 220 at 232 
5. cf Wong (2001) HCA 64; (2001) 207 CLR 584 at 611 (75); Markarian -v- The Queen (2005) HCA 25; (2005) 228 CLR 357 at 373-375 (37); (2005) HCA 25; Muldrock -v- The Queen (2011) HCA 39; (2011) 244 CLR 120 at 128 (18); (2011) HCA 39; Munda -v- Western Australia (2013) HCA 38; (2013) 87 ALJR 1035 at 1046 (59); (2013) HCA 38; 302 ALR 207 at 219; (2013) HCA 38 
6. cf MacNeil-Brown (2008) 20 VR 677 at 678 (3(b)) 
7. Hili (2010) HCA 45; (2010) 242 CLR 520 at 535 (48)- (49) 
8. Hili (2010) HCA 45; (2010) 242 CLR 520 at 535 (53)- (54) 
9. cf Wong (2001) HCA 64; (2001) 207 CLR 584 at 606 (59); Hili (2010) HCA 45; (2010) 242 CLR 520 at 537 (54); Director of Public Prosecutions (Cth) -v- De La Rosa (2010) NSWCCA 194; (2010) 79 NSWLR 1 at 71 (304) per Simpson J 
10. MacNeil-Brown (2008) 20 VR 677 at 711 (130) per Buchanan JA, 716 (147) per Kellam JA