Casenote PDF

The Corporate Fail casenote is available to download here:  Barbaro v The Queen casenote.  The case is available online: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2.

Why Is This Case Important?

Barbaro establishes that a prosecutor must not make a “sentencing range” submission to a sentencing court. At the time the decision was made, it was common practice for Victorian prosecutors to prepare “sentencing range” submissions, in accordance with R v MacNeil-Brown (2008) 20 VR 677 (“MacNeil-Brown”).  A related, but different, practice existed in Queensland.

The “sentencing range” submission described in Barbaro, is a submission that purports to identify the limits of the sentencing discretion, so that, according to the prosecutor, any sentence outside that range would represent appealable error, as described in House v King (1936) 55 CLR 499; [1936] HCA 40.

The case has a broader reach than this, however.  There are at least two other types of sentencing submission that prosecutors are unlikely to be permitted to make, as a result of the plurality’s reasoning. The first is a submission advocating a particular numerical penalty, and the second is a submission advocating a penalty within a range – not a House v King range, but a narrower range, representing what the prosecutor considers appropriate. Consider also, the NSW DPP’s reaction to the case.

Corporate Crime Context

In the corporate crime context, this means that the regulator prosecutor is unlikely to be permitted to make the following types of submission: ‘the regulator considers that a minimum fine of $X is required to effectively deter other licensees from similar conduct’ or, ‘in the prosecutor’s view, a sentence in the range $X-$Y would provide sufficient general and specific deterrence to maintain consumer confidence in the market.’

This has two important consequences for the prosecution of corporate crimes. First, in corporate crime cases, the informant is ordinarily a regulator (or a member of its staff). The regulator may have a range of enforcement options for dealing with the offending corporation; indeed, the regulator may have a choice between civil pecuniary penalty litigation and prosecution. Knowing that a regulator may make penalty submissions in a civil case, but not a criminal one, may be a relevant consideration when the regulator is determining what the appropriate enforcement action is in a particular case.

A second consequence for the prosecution of corporate crimes is this. Because counsel may not advocate for a particular penalty, but the regulator, having relevant expertise, is likely to have a strong view about what is required for specific and general deterrence, counsel will need to take great care to identify the bases for the regulator’s views that a particular penalty is required, and set these out at the plea hearing. This may require expert evidence, perhaps from the regulator’s staff, perhaps from external experts. So, for example, it may not be sufficient to simply provide “similar cases” to the sentencing judge; it may also be important to identify subsequent behaviours of those offenders, reactions of other market1 participants to that prosecution and its outcome, and reactions of other affected persons. It may also be important for the court to consider the reactions and subsequent behaviours of market actors following non-criminal enforcement action. All these facts will serve to educate the sentencing court about the character of the market and its participants, which is important for the fixing of an appropriate sentence. In reality, bringing all this information to the attention of the court in an accessible and admissible format takes considerable time and skill. It will only be well-resourced regulators who are able to do this.

Comment & Critique

Many Bases For The Decision

The unfortunate thing about Barbaro is that the plurality make many comments explaining the undesirability of Crown sentencing range submissions, but are not clear about which of those comments found its decision. Is it the combination of all the matters cited, which makes it improper for the Crown to submit a range? Or is one (or more) of the matters determinative, and are the other comments mere observation, demonstrating the importance of the decision? This uncertainty makes the case difficult to apply to other situations. Depending on which of the comments one seizes upon, or which combination of comments, the decision may appear either very constrained (applying only to House v King-style ranges by the Crown) or, it may be very wide-reaching, preventing a wider set of submissions by both the Crown and the offender, in sentencing but also in other parts of the criminal trial. Compounding the difficulty is the fact the High Court did not discuss wider implications of its decision. Despite, for example, the CDPP raising three different types of Crown sentencing submission at the oral hearing, and many references made to defence sentencing submissions at the oral hearing, these were not mentioned in the Barbaro decision.

To crudely summarise, the plurality identify the following matters making Crown sentencing range submissions improper, unhelpful, undesirable, and impossible to formulate in any case:

Improper
  • It is an expression of opinion that would be improper to take into account when determining the sentence. [7], [49]
  • These types of submission require the prosecution to assume an improper role, namely, “surrogate judge”. [29]
Unhelpful
  • The Crown will not be dispassionate, and may give undue weight to the utility of a guilty plea or other assistance provided to it; therefore its opinion is not helpful. [30] – [32]
  • 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.” [38]
Undesirable
  • The public may think that the prosecution plays a more important role in sentencing than it does. [33]
  • It may increase the number of Crown appeals against sentence, if a judge sentences outside the proferred range. [33]
Impossible to formulate in any case
  • “[T]he essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.” [27] (Also, [43])
  • The judge is the sole determiner of the relevant facts, and the judge must synthesise those facts. The Crown cannot know what the judge will find, or how she will weigh those factors in her synthesis; therefore the Crown cannot accurately identify the “sentencing range”. [36] – [42]

Which bases found the decision?

In my view, there are two determinative bases for the decision. First, the House v King-style range is impossible to formulate, therefore it has no place in submissions.2  Second, as summarised at [7], and explained at [49]:

Once it is understood that a submission by the prosecution about the bounds of the available range of sentences is no more than a statement of opinion, it follows that the sentencing judge need not, and should not, take it into account in fixing the sentences to be imposed. [49]

The trouble with this second reason is, as the Victorian Supreme Court noted in Matthews v The Queen [2014] VSCA 291 (“Matthews”),

In the scheme of things, judges not infrequently receive submissions which in effect express the submitting party’s view of the conclusion to which the judge should properly come. [17]

So some of the other matters cited by the Barbaro plurality must explain why these particular expressions of opinion ought not to be received by the court. If the Crown’s opinions on ultimate conclusions were never to be received in submissions, then the Crown could not submit, in so many words, that a piece of evidence ought to be admitted (or excluded); that a juror or jury should be discharged (or not discharged); that a witness should be recalled (or not) and so on. Counsel might also be prevented from assisting a judge who seeks input from counsel on the formulation of difficult jury charges and answers to peculiar jury questions.

A simple answer might have been that the sentencing function of the judge is distinct from all other judicial functions, and that, therefore, while a judge may properly hear the opinions of counsel during the running of a trial, once a conviction is secured, the opinions of counsel (or the Crown, if the offender is permitted to opine) must not be received. Using the sentencing/non-sentencing dichotomy as the touchstone of distinction would, in my view, have been more satisfactory than using the submission-of-law/submission-of-opinion dichotomy to support the decision. If nothing else, MacNeil-Brown and Barbaro demonstrate that great minds may disagree about what constitutes a submission of law, making that distinction an unwieldy one for practitioners engaged in criminal cases day-to-day. But perhaps there is sufficient dicta in the plurality reasoning touching on the unique sentencing function of the court, to allow judges to pull out this thread for future use.

Subsequent Treatment

Barbaro enlivened many questions, including:

  • May defence counsel submit a sentencing range or make other numerical sentencing submissions?
  • If defence counsel do propose a sentencing range, may the Crown respond? If so, how should they respond? And what are the consequences upon sentence appeal if they do not?
  • Does Barbaro concern imprisonment ranges only, or can a prosecutor submit a range, or figure, for financial penalties (for example, when sentencing a corporation?)
  • Does Barbaro prohibit House v King-style ranges only?
  • Can the Crown make submissions regarding appropriate conditions and length of time for a Community Corrections Order (‘CCO’), or make similar submissions regarding other sentencing dispositions?
  • Does Barbaro prohibit prosecutors from making other submissions about ultimate conclusions, and if so, which ones?

Matthews

In Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291 (“Matthews“) Warren CJ, Nettle and Redlich JJA (as the majority) went about answering some of those questions: Can defence counsel offer a sentencing range? Yes. [24] May the Crown respond? Yes— but not with a range, “[s]o much is now prohibited by Barbaro.” [25] May the Crown submit that particular types of sentencing disposition are appropriate — for example, imprisonment, CCO, fine, conviction? Yes. [27]. There was plenty of dicta in the Barbaro plurality decision that weighed against each of these conclusions; but, as the VSCA said pointedly, if such practices were to be extinguished, this “would have been stated expressly because of its effect on the criminal justice system.” [24] The Court noted in opening comments that the High Court had, back in 2008, dismissed MacNeil-Brown’s application for leave to appeal [4] – that application having the support of the Victorian DPP who, during the special leave application, decried the MacNeil-Brown development as ‘wrong’, ‘dangerous’ and ‘an unwelcome, unnecessary development in the law’. 3

Cth v Director Fair Work Building Inspectorate

The High Court reconsidered and commented on Barbaro in Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46, and that case deserves special attention when interpreting Barbaro.  Note the members of the bench hearing the matter: Hayne J has retired, but all the remaining Barbaro judges sit on Cth v DFWBI.  They are joined by Gordon J and Nettle J; you will note that Nettle J sat on the Matthews bench.

The plurality, being French CJ, Kiefel, Bell, Nettle and Gordon JJ, say the decision in Barbaro was “principally informed by three considerations.” [35]  First, “it is impossible to define the precise limits of the “available range” of terms of imprisonment that may be imposed on a criminal offender.” [35]  So, here we see the High Court confining Barbaro to submissions on imprisonment, something it certainly did not do in the text of Barbaro, but this must have been prompted by the Matthews comments, and, one guesses, Nettle J’s involvement. Second, “a statement as to the available range of sentences can never be more than an expression of opinion; and, in a criminal proceeding, the Crown’s opinion is irrelevant.” [36] Here, we see the High Court expressly limit Barbaro to opinions of the Crown, something it did not do explicitly in Barbaro.  Third, allowing the Crown to give a range “could lead to erroneous views about the importance of such a statement in the sentencing process, with consequent blurring of what should be, and be perceived to be, the sharp distinction between the role of the judge and the role of the prosecutor in the criminal trial process.” [37]

Gageler J’s concurring judgment, at just 10 paragraphs, is worth a close read.  He considers that the Barbaro plurality judgment is best conceptualised in this way:

“The reasoning of the plurality in Barbaro is therefore best understood as having gone no further than to recognise a qualification to the common law duty of a prosecutor to assist a criminal court to avoid appealable error, founded on a consideration of legal policy. The qualification is that the prosecutor cannot state that a custodial sentence of a specified numerical length or of a length within a particular numerical range is appropriate. The policy reason is that for the prosecutor to speak of numbers would give rise to what was assessed to be an unacceptable risk of breaking down the sharp distinction which must exist within the criminal justice system between the roles of the prosecution and the court in exercising the coercive power of the state in the punishment of criminal guilt.”  Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46 at [77] per Gageler J.

Perhaps this conceptualisation of Barbaro will become the dominent view, over time.  It certainly simplifies matters, and avoids the “submission of law/submission of opinion” distinction which is apt to confuse.

Regulators As Informants And Prosecutors

One question Barbaro (and, later, CFMEU) raises for you and I, with our interest in corporate crime and regulation, is whether regulator prosecutors and informants should be distinguished from non-regulator prosecutors and informants. I think the answer must be, ‘no’, and this helps account for the rise of pecuniary penalty provisions in regulatory legislation. Nonetheless, it’s an interesting question to ask now, at this time when the bounds of civil and criminal law are being tested and challenged.

Sentencing Statistics

One minor point also arises, really as an aside: the plurality said,

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. [40] (My emphasis.)

Insofar as this comment promotes the use of sentencing statistics, it is rather inscrutable. Sentencing statistics give nothing but numerical equivalence. Sentencing statistics give not one scrap of insight into the relevant legal principles applied in each case. For my part, I’ve never known a sentencing judge to say they’ve derived much assistance from these statistics; the comment is often made that the statistics are of little, if any, utility. On the other hand, the sentencing summaries prepared by the JCV are generally useful, as they contain brief facts of each case. What might be most helpful, of course, would be sentencing judgments that annex the agreed facts, where such facts exist. All too often, a sentencing judge accepts the Crown summary (which is agreed between the parties), and proceeds without reading that summary into the judgment, so that there is no public record of the facts.  Annexing these documents to sentencing judgments would provide great assistance.  Of course the other difficulty is that summary sentencing judgments are not recorded at all – for regulators this is particularly problematic, as the vast majority of their prosecution work is completed in these lower courts.

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  1. I’m using ‘market’ as a shorthand here to refer to the regulated environment. For many regulators, this is indeed a market of some description; for others – environmental regulators, for example – it is not.
  2. Note that this view is not consonant with Matthews. If I am correct in my reading of the House v King-comments by the plurality, then the offender would also be prevented from offering a House v King-style range. Matthews, however, explicitly confirms that an offender may put such a range.  Also note, that Gageler J addressed this very point in Cth v Director FWBI, concluding that the Barbaro plurality judgment ought to be understood – consistently with Matthews – as applying only to prosecution statements, despite its apparent application to both parties. 
  3. Curiously, although the VSCA in Matthews affirmed the right of defence counsel to submit a sentencing range, it would appear, based on the applicant’s oral submissions in MacNeil-Brown’s application for special leave, that defence counsel in 2008 were not in the habit of submitting a range:

    There is also the defence barrister.  What does the defence barrister do with this when the prosecutor [gives a sentencing range]?  As a matter of natural justice of course he is entitled to respond.  What an awkward position.  The answer is always only ever going to be a lesser figure unless there is some deal done.  How does the defence barrister respond anyway?  Is this something upon which instructions are obtained?  Is it a situation where barristers are bound by what their clients say? The proffering of an answer, if the defence barrister is honest, cuts across what it was said by his Honour Justice Menzies in Pemble, defence barristers cannot concede matters of law to the detriment of their client.  None of this was, in our respectful submission, considered in determining that this is what can happen and prosecutors can be required to answer these questions.

    But, whatever may have been the case in 2008, Victorian defence counsel in 2016 do not find it peculiar to submit a sentencing range.