SOME ASPECTS OF THE PROSECUTOR'S ROLE AT SENTENCING*
J.Willis, Senior Lecturer, School of Law and Legal Studies,
La Trobe University.
Introduction
In 1980 the Australian Law Reform Commission stated:
Indeed the process of prosecution in Australia
at both the State and Federal level is probably the
most secretive, least understood and most poorly
documented aspect of the administration of criminal
justice. It is also one of the most sensitive aspects
of criminal justice.1
Since then much has changed. Virtually every aspect of the
criminal justice system has been the subject of critique and
change. The prosecution component of the criminal justice
system has been very much part of this change. All Australian
jurisdictions have established special bodies for prosecutions
which are clearly independent of government. The victims of
criminal offences, previously subsumed under the general cloak
of the community interest, have acquired a special status and
with it to some extent a new role.
There has been considerable change in the area of
sentencing. Comprehensive sentencing statutes have been
enacted; maximum penalties have been rationalised; new
sentencing dispositions have been created; and the truth-insentencing' movement has seen the abolition of remissions and
the
curtailment
of
other
administrative,
pre-release
mechanisms. The victims have been given some input into the
sentencing process largely through victim-impact statements.
There has been considerable legislative activity with regard
to forfeiture and confiscation provisions. More recently,
concern about particular kinds of offenders - especially
violent and sexual offenders- has seen the enactment of
legislation designed to increase substantially the penalties
imposed on such offenders.
The implications of many of these changes on the role of
the prosecutor in the sentencing process have yet to be worked
out.
Background
1
The traditional position of the prosecution at sentence
has been set out in the oft-quoted remarks of Mr. Christmas
Humphries:
.When the summing-up is reached, the duty of Crown
counsel is largely discharged, for in the matter of
sentence he will exercise no grain of pressure towards
severity, and will leave his opponent to say what he
may in the matter of mitigation."
This is not the position in Australia. The establishment
of prosecution appeals against sentence led to greater
prosecution involvement in the sentencing process through the
obligation of the prosecutor to assist the court to avoid
appealable error.' The introduction of new, and often
complicated, sentencing legislation has given added impetus
towards a more active role for prosecutors in the sentencing
process. I
What is the proper role for prosecutors at the sentencing
hearing is by no means clear. Specifically, the desirability
of increased prosecution involvement especially with regard to
submissions and suggestions about the appropriate range or
quantum of a sentence is highly questionable. Discussion of
these issues should commence with some analysis of the
sentencing process.
The sentencinq process
There have been traditionally three main players at
sentencing hearings - defence counsel, prosecutor and the
sentencer. The role of defence counsel is clear enough - to
act on behalf of his or her client in seeking ( generally) the
least punitive sanction. The sentencer's role is likewise
clear - to impose on the accused an appropriate disposition in
accordance with the law. The role of the prosecutor is
somewhat more nebulous - and is sometimes described as
representing the public interest.'
The public interest will be achieved if the sentence
imposed is a proper reflection of the circumstances of the
offence and the offender, is in accordance with the relevant
sentencing principles and laws, and represents a proper fusion
or choice of the relevant sentencing aims ( retribution,
2
deterrence,
rehabilitation
and
denunciation).
It
is,
therefore, the role of the prosecutor to assist within limits
the sentencer to arrive at that proper sentence.
The three roles of defence counsel, prosecutor and
sentencer are conceptually quite distinct, although in a
particular case the goals of the parties may in fact coincide.
Thus, defence counsel's submission that in the particular
circumstances of the case the primary focus of the sentencer
should be on rehabilitation may be accepted as correct by both
prosecutor and sentencer. The public interest in such a case
is
being
served by
a
sentencing disposition seeking
rehabilitative goals.
The public interest has a wide compass. It represents the
general interest of the community in being, and being seen to
be, protected by the criminal justice system, in having
offenders adequately punished and their behaviour publicly
denounced, and in having through the process and the sentence
offenders and potential offenders deterred from law-breaking.
The public interest also encompasses in a special way the
needs of the victim, who, while a member of the general
community, has a particular interest in the process and the
outcome. The manner in which the interest of the victim should
be presented at the sentencing hearing is still being worked
out.
The offender is also encompassed within the public
interest; he or she is part of the community and will after
sentencing (save in the most exceptional of cases) remain in,
or return some time later to, the community. The public
interest will often see rehabilitation of the offender as in
the best short- and long-term interest of both offender and
the rest of the community.
This broad, encompassing nature of the public interest is
likely quite often to have various elements in that
constituency seeking quite disparate goals: the victim may be
stridently vengeful, the media (which is at the least a
conduit of information and views to the wider community) may
be seeking retribution and emphasising general deterrence, and
3
the defendant, an object of some pity with substantial
mitigatory plea material, may be seeking leniency. The basic
task of the prosecutor is to present, or to allow the
presentation of, all the material necessary for the sentencer
to perform his or her task properly.
The adversarial nature of our criminal justice system
extends in certain crucial ways to the sentencing hearing.
Unlike the inquisitorial system, with which it is generally
compared, the sentencer does not generally investigate or
collect relevant factual sentencing material. That
is
primarily the role of prosecutor and defence counsel. As was
said in R v Gamble' by Street CJ (with whom Lee and Enderby JJ.
concurred):
'...the duty of the Crown to assist the court by
furnishing of appropriate and relevant material
touching upon the determination of a sentence . . . is a
duty which the Crown customarily undertakes and is
generally expected of the Crown, in the courts of this
state. Antecedents reports are expected to be furnished
by
the Crown showing such of the subjective material
elicited in relation to the accused as is necessary
to present a fair picture to the judge. The material is
also expected to canvass the accused's earlier criminal
record, if any. If there is a plea of guilty . . .the Crown
would be expected to put before the sentencing judge the
broad nature of the factual allegations upon which the
Crown relies as constituting the offence to which the
accused has pleaded guilty. These are well recognised
obligations on the Crown, and, indeed, it is difficult
to see how the sentencing process could be properly
carried through unless the Crown fulfilled them.'
The sentencer is, therefore, in large measure dependent upon
the information provided by the prosecution. In higher courts
there will generally be depositions, but especially in cases
where there was not a contested committal, the depositions may
in part be ambiguous, unclear or imprecise. Often, too, the
charges to which the accused is pleading guilty will not be
those with which he or she was originally charged or on which
he or she was committed. In such cases the sentencer will
often need guidance from the prosecutor on just what the
prosecution is alleging.
There are restraints placed on the prosecution in both
4
the trial and the sentencing of accused persons. The
prosecution must always act fairly and without personal
rancour. As King CJ, with whom Mitchell and Williams JJ,
concurred, stated in R v Wilton :
.It remains true that the Crown is required to make its
submissions as to sentence fairly and in an even-handed
manner, and that the Crown does not, as an adversary,
press the sentencing court for a heavy sentence.'
This
requirement
to
act
fairly
extends
to
the
presentation to the sentencing court by the prosecutor of
facts that will assist the accused. As McGarvie J., giving the
judgment of the Victorian Court of Criminal Appeal in R v
Rumpf", stated:
.In my opinion the facts which the prosecution has a duty
adequately to present to the court are not limited to the
facts of the offence. Many facts beyond those are taken
into consideration in passing sentence. For example, as
stated by Fox and Freiberg:" The behaviour of the
defendant after he has offended is considered to be a p r o p e r
matter to be taken into account at sentencing. His
voluntary desistance from further wrongdoing,
preparedness
and
to make restitution, willingness to assist
p o 1ic e ,
efforts to rehabilitate himself all may tell
to
his
advantage when he is sentenced. First because such
conduct
may indicate remorse and secondly, because it may
be seen
as an effort to mitigate the harm caused to the
victim or to
society": Sentencing: State and Federal Law i n
Victoria,
1 9 8 5 , para. 1 1 . 5 0 1 .
This duty can also be seen as flowing from the prosecutor's
role of representing the public interest, which includes the
accused. By contrast, defence counsel need not reveal to the
court matters harmful to his or her client. As was said in
Rumpf' :
.So long as what is put before the court on behalf of the
convicted person is not misleading, it is not the duty of
a defence lawyer to disclose to the court detrimental
facts such as prior convictions or detrimental aspects of
the client's antecedents or character.
However, the prosecution's duty to act fairly and in an
even-handed manner does not mean nor imply that the
prosecution must not in an appropriate case point to
aggravating aspects of the case which are likely to require a
strongly punitive sentencing response.
5
The adversarial structure of the sentencing process with
prosecution
and
defence
counsel
having
different
constituencies and different goals generally has a significant
impact on the prosecution role. Defence counsel, who
represents only the accused, will be seeking in accordance
with instructions the best outcome for his or her client. The
outcome being sought will in virtually all cases be a
disposition at the lenient end of the reasonably available
sentencing spectrum. As a consequence, the prosecutor will
generally be cast in opposition to defence counsel, although
the prosecutor's brief includes the accused ( as part of the
community). Firstly, the prosecutor must on occasion test the
factual and legal accuracy of defence evidence and submissions
to ensure that the sentencer will be making a decision on
accurate information. Secondly, the other constituents of the
-public interest' - the victim and the community at large are reliant on the prosecutor for the presentation before the
court of proper material and submissions on their behalf. Such
material and submissions will frequently suggest dispositions
of greater severity than that being sought by the defence.
The prosecution also has a role as watchdog as it were
over the sentencer in the public interest. Sentencers can make
mistakes and impose sentences that are too heavy or too
lenient. In the case of sentences that are too heavy the
appeal will be undertaken by the defence. However, appeals
against excessive leniency are matters for the prosecuting
authority. As McHugh J. stated in Everett v R ' " :
.Uniformity in sentencing is a matter of great importance
in maintaining confidence in the administration of
justice in any jurisdiction. Sentences that are higher
than usual create justifiable grievances in those who receive
them. But inadequate sentences also give rise to a sense of
injustice, not only in those who are the
victims
of
the
crimes in question but also in the general
p u b 1 i c .
Inadequate sentences are also likely to undermine
public confidence in the ability of the courts to play
their part in deterring the commission of crimes. To
permit the Crown, as well as convicted persons, to
appeal against sentences assists in maintaining
confidence in the administration of justice.'
But the right of appeal granted to the Crown has brought with
6
it the corresponding .duty to assist the court to avoid
appealable error. r ' ' Failure on the part of the prosecution to
fulfil that duty, especially in a case where the accused
received a non-custodial disposition, will nearly always be
fatal to a Crown appeal.''
The role of the prosecutor includes the making of
submissions on the relevant sentencing principles, statutory
provisions and decided cases. It is rare for instructions as
to sentence to be included in a prosecution brief. Moreover,
any such instructions could be rendered quite inappropriate in
the light of material presented by the defence on plea.
Submissions made by a prosecutor either on the prosecutor's
initiative or in response to questioning by the sentencer will
generally be made on the basis of the facts of the particular
case as they have unfolded at the hearing and in the light of
that
prosecutor's
perception
of
what
an
appropriate
disposition would be.
Asreed duties of a prosecutor
While there may be some differences in jurisdictions as
to the degree of active prosecution involvement in the
sentencing hearing' , there does seem to be general agreement
that at the sentencing hearing the prosecutor has the
following functions or duties.
The prosecutor has a duty to:
(a) provide to the court:
(i) a clear and adequate presentation of the factual
material on which the prosecution bases its case;"
(ii) the antecedents of the accused including his or her
prior convictions (if any);"
(iii) the antecedents and sentences passed on cooffenders if they have been dealt with earlier;'''
(b) test the defence case whenever that seems appropriate;'
(c) make submissions on any special sentencing
principles or legislation that are of relevance to the
particular offence;'A
(d) provide such further information as may be necessary for
the sentencer to determine the appropriate sentence ( e.g. in
7
drug cases, such matters as details of the physiological and
psychological effects of the drug and the extent of the
community problems associated with that drug);'"
In addition, the prosecutor must as far as can reasonably
be done assist the court to avoid appealable error. In
particular where it appears that there is a real possibility
that the court will make a sentencing order that the
prosecutor considers is not within the proper exercise of the
sentencer's discretion, the prosecutor has a duty to make
submissions to that effect. This duty applies particularly if
the sentence being contemplated by the sentencer is noncustodial. "
Addressing on sentence
There is a degree of uncertainty about just precise a
prosecutor should be in making submissions on sentence.
Submissions on sentence can be divided into four
categories: custodial or non-custodial, type of sentencing
disposition (e.g. fine or community-based order), range within
a particular sentencing order, and a precise quantum.
There is considerable support for the propositions that
the prosecutor can properly make submissions about the type of
sentencing disposition and especially whether the sentence
should be custodial or non-custodial.
Beyond that the
position is not so clear. There is little support for the
proposition that the prosecutor can properly make submissions
about the precise quantum of a sentence.?' There is some
variation in approach with regard to the prosecutor making
submissions about the appropriate range within a particular
sentencing disposition. In Casey and Wells ' the Victorian
Court of Criminal Appeal stated that the prosecutor could
address on the appropriate range, but that it was not
appropriate for the prosecutor to 'suggest a precise period of
imprisonment as being a proper penalty' or .to urge the court
not to impose a penalty less than a specified sentence'. 1 In
Glassr Hunt CJ at CL stated that in the particular
circumstances of the sentence indication hearing scheme in New
South Wales:
8
By
.... the Crown Prosecutor should in future be under an
obligation to go further than his or her traditional
role in the ordinary sentencing procedure, and should
indicate to the judge a range of sentences which the
Crown considers to be appropriate to the circumstances
of the particular case being considered, so that both the
judge and the applicant for a Sentence Indication can be
under no misapprehension that, if the judge decides to
impose less than the range so indicated (as the judge is
undoubtedly entitled to ) , there is at least some risk of
a Crown appeal.‘
implication, the prosecution role in the ordinary
sentencing hearing does not extend to indicating the
appropriate range within a particular sentencing disposition.
In Tasmania, there is legislation dealing with the rights
o f the prosecutor to address on sentence. S.386(12) of the
Criminal Code 1924, as amended by the Criminal Code Amendment
(Addresses on Sentences) Act 1987, states that the prosecutor
may in addressing on sentence’:
(a) draw the attention of the court to any aggravating
circumstances, or the presence or absence of any
extenuating circumstances, in relation to the crime;
(b) where the court has a choice with regard to the kinds
of sentence that it may impose in relation to the crime,
comment on the appropriateness of those kinds of
sentence; and
(c) where the court has a choice with regard to those
kinds of sentence, recommend that the court impose one of
those kinds of sentence.
In his second-reading speech introducing these provisions, Mr.
Bennett, the Attorney-General, stated”:
.It [sc. the proposed legislation] will also permit the
appropriateness of the various sentencing options to be
properly canvassed and, in appropriate cases, the urging
of a particular sentencing option on the court. However
it must be pointed out that the bill will not enable the
prosecution to urge the imposition of a specific sentence
such as saying the case called for imprisonment for two
years or thereabouts. The bill will not fetter the
discretion of a court in this respect.‘
In the light of the Minister’s comments and the specific
provisions of ~.386(12)(a),(b) and (c), it would seem that the
legislation did not contemplate submissions by the prosecutor
recommending ranges within a particular sentencing disposition
at least if those recommendations were numerically precise.
9
The Guidelines issued in 1986 on a trial basis by the
Commonwealth Director of Public Prosecutions dealing with
addressing on sentence stated that:
'(xi) In appropriate cases it is proper for a prosecutor
to submit that the court should impose a particular type
of penalty (eg: imprisonment rather than a bond or a
fine). The prosecutor should not urge the imposition of a
particular penalty (such as 2 years imprisonment),
although there is no reason why in appropriate
circumstances the prosecutor should not submit that a s h o r t
(or moderate, or lengthy) term of imprisonment
is appropriate. ''
The Prosecution Guidelines of the Office of the Director
of Public Prosecutions in New South Wales issued in December
1995 effectively state that:
- a prosecutor must not advocate for a sentence of a
particular magnitude, but may inform the court of an
appropriate range of penalty by reference to authority.'
This Guideline would seem to permit submissions on range of a
particular penalty only when such a submission can be based on
specific appellate court decisions.
It is clear that a prosecutor can (and indeed should)
refer a sentencer to authority pointing towards a particular
range of sentence. Guideline judgements or appellate court
decisions setting out ranges of sentences for specific
offences
not
only
provide
authoritative guidance
for
sentencers but also obviate any need for the expression by a
prosecutor of what he or she considers to be an appropriate
range.
Where there are no such appellate decisions, the question
remains as to how far the prosecutor should go in suggesting
an appropriate range within a given sentencing disposition. A
starting point
is
the distinction between
submissions
recommending a particular type of penalty, those recommending
a range within a particular sentencing disposition and those
recommending a precise quantum. Submissions on a particular
type of penalty can be seen as qualitatively different from
submissions on range or quantum. Submissions on type of
penalty may be squarely based on sentencing princip1e"and in
any event do not involve the same level of precision and
10
particularity involved in submissions on range and quantum. On
the other hand, the logic of the distinction between
submissions on penalty range and nominations of a precise
penalty is not particularly clear. The distinction between
advice on sentence range and the recommendation of a precise
quantum can often be a fine one and the restriction of
submissions to range and not quantum may often be a
distinction without much difference.
If there are cogent
arguments against prosecution submissions on precise quantum
of penalty it can be strongly argued that prosecution
submissions on penalty range are likewise undesirable.
The major rationale for the objection to submissions
about quantum seems to be the concern that the roles of
prosecutor and sentencer be clearly delineated. The sentencer
is, and must be seen to be, an independent figure, who imposes
a just sentence independently of the suggestions of either
prosecutor or defence counsel. A sentencer, so it is argued,
who receives from the prosecution, a recommendation for a
precise quantum, say 4 years' imprisonment, and imposes that
precise penalty can be seen as following the suggestion of the
prosecution rather than making an independent assessment.
It is also argued that the prosecution's duty of fairness
should preclude the nomination of a precise penalty since such
an approach is inconsistent with the duty of the prosecution
to be a disinterested, non-partial participant in the process.
It is instructive to consider three possible scenarios
linked with prosecution advice on a precise quantum.
If the prosecution makes a recommendation for a precise
figure and the sentencer accepts it, the prosecution can be
seen
as
highly
influential, and
indeed
arguably
too
influential, in the sentencer's determination of sentence.
If the prosecution makes a recommendation for a precise
figure and the sentencer imposes a lower sentence, a range of
inferences may be drawn. The prosecutor may be seen as setting
out for the sentencer the outer parameters of the appropriate
penalty range and in so doing acting as some kind of devil's
advocate for the sentencer. Alternatively, the prosecutor may
11
be seen as excessively vengeful. Neither of these perceptions
is desirable. On the other hand, the sentencer, while clearly
acting independently of the prosecutor, may be seen as getting
it wrong. Once again, the perception is undesirable.
If the prosecutor makes a recommendation for a precise
sentence and the sentencer imposes a higher sentence, the
prosecutor may be seen as weak and insufficiently attentive to
the public interest. Alternatively, the sentencer while
clearly acting independently of the prosecution may be seen as
getting it wrong. Neither perception is desirable.
The point is that any nomination of a precise sentence by
the prosecution is likely to put both prosecution and
sentencer in a difficult position. Moreover, this concern also
applies, and with only slightly less force, to nominations by
the prosecution of the range of a specific penalty.
The situation is further complicated by the reality that
in many instances the prosecutor will be more informed than
the sentencer. The prosecutor will often be working full-time
in the criminal area and have considerable experience and
expertise in sentencing law and practice. The sentencer may,
not be permanently involved in the criminal justice area.''
Where the prosecutor has considerably more experience than the
sentencer, it is inevitable that the prosecutor's view will
carry considerable weight with the sentencer. In such cases,
the sentencer, who has received a precise indication of
quantum or indeed range from the prosecutor, will doubtless be
under
very
considerable
pressure
to
accept
that
recommendation. As a consequence, the independence of the
sentencer can be seen to be compromised.
The proper role of the prosecutor also needs to be
considered against the existence of plea negotiations which
may have led to the dropping of certain charges and the
acceptance of a plea to others. As a general rule, such
prosecution decisions are not matters for the Court. However,
these decisions will often have a significant effect on the
sentence. In addition, these negotiations may
involve
agreements by the prosecution as to agreed facts and as to
12
what submissions it will or will not make at the sentencing
hearing.- The greater the involvement of the prosecution in
making submissions and more particularly suggesting ranges of
sentence and quantums, the greater the potential for either
inappropriate understandings and agreements or agreements on
which the prosecution cannot deliver.
In summary, then, while it is proper and desirable that
the prosecution make submissions about sentencing principle
and even about type of sentence, it is inappropriate and
undesirable that the prosecution should go further and without
reference to appropriate appellate decisions make submissions
about either range or quantum of sentence.
77
Prosecution appeals against sentence
Prosecution appeals against sentence exist in all
Australian jurisdictions. Speaking of such appeals, King CJ.
in R v Osenkowski" made the following, oft-quoted remarks:
.It is important that prosecution appeals should not be
allowed to circumscribe unduly the sentencing discretion
of judges. There must always be a place for the exercise
of mercy where a judge's sympathies are reasonably
excited by the circumstances of the case. There must
always be a place for the leniency which has
traditionally been extended even to offenders with bad
records when the judge forms the view, almost
intuitively in the case of experienced judges, that
leniency at that particular stage of the offender's life
might lead to reform. The proper role for prosecution
appeals, in my view, is to enable the courts to
establish and maintain adequate standards for punishment
of crime, to enable idiosyncratic views of individual
judges as to particular crimes or types of crime to be
corrected, and occasionally to correct a sentence which
is so disproportionate to the seriousness of the crime
as to shock the public conscience.'
More recently in Everett v R " the High Court has stated
that:
%..a court of criminal appeal must, in the absence of
clear statutory directions to the contrary, recognise
that there are strong reasons why the jurisdiction to
grant leave to the Attorney-General to appeal against
sentence should be exercised only in the rare and
exceptional case.'
The High Court went on to state that in determining whether
13
the Crown should be given leave to appeal against sentence,
.a court of criminal appeal should be guided by the
following comments of Barwick CJ in Griffiths v R:
"an appeal by the Attorney-General should be a rarity,
brought only to establish some matter of principle
and to afford an opportunity for the Court of Criminal
Appeal to perform its proper function in this
respect ,
namely, to lay down principles for the governance
and guidance of courts having the duty of sentencing
convicted persons. "
The High Court then commented that the .matter of principle'
referred to by Barwick CJ in the passage just quoted "must be
understood as encompassing what is necessary to avoid the kind
of manifest inadequacy which Barwick CJ saw as constituting
'error in point of principlerft.
The High Court further stated that failure by the
prosecution to object to a proposed sentence (at least where
the accused has been released and is free) will generally be
fatal to a successful prosecution appeal.
The High Court has made it very clear in Everett v R that
prosecution appeals against sentence should be mounted only in
very special cases." Such a stringent restriction on
prosecution appeals needs some discussion. A starting point
might be what can be called an argument from symmetry - the
prosecution should have the same rights of appeal as are
possessed by the accused. Such an approach, however, is
unacceptable because as the High Court stated in Everett v R
prosecution appeals against sentence cut "across the timehonoured concepts of criminal administration by putting in
jeopardy for the second time the freedom beyond the sentence
This is particularly the case where, as in Everett
imposed.
V
R I the accused has been allowed to go free. However, the
principle applies across the whole spectrum of sentencing
decisions, including those where an effective custodial
sentence was imposed at first instance. There is also the
concern expressed by King CJ in R v Osenkowski (quoted above)'"
that the existence of Crown appeals may inhibit excessively
the sentencing discretion of judges who were minded towards
leniency.
' I i H
14
On the other hand, it can be argued that very lenient
sentences fail to give sufficient weight to the public
interest in the proper punishment of offenders and can cause
considerable public disquiet and dissatisfaction with the
operation of
the
criminal
justice
system. The
same
considerations will often also apply to the victim who may
well see a very lenient sentence as a judicial down-grading of
his or her pain and suffering. The existence of prosecution
appeals enables these concerns to be addressed.
Moreover, it is not clear why prosecution appeals against
sentence should be .rare and exceptional‘. The frequency of
such appeals must surely depend on the sentencing decisions of
judges. Furthermore, the criterion enunciated by Barwick CJ in
Griffiths v R ” would cover appeals designed to avoid and
correct -manifest inadequacy‘ in the original sentence. It is
by no means clear that such a criterion would be met only in
the .rare and exceptional case’.
The further limitation on prosecution appeals (namely the
requirement that the prosecution object at the time to a
proposed or possible lenient sentence) also needs discussion.
This requirement of objection springs from the duty of the
prosecution to assist the sentencer to avoid appealable error
and from the unfairness seen as being involved in having an
accused face a greater penalty at a later occasion (the double
jeopardy issue). This latter concern is most powerful when the
accused, as in Everett v R, have been released from custody
after the original sentence hearing and are again at risk of
incarceration. But the double jeopardy concern exists in all
prosecution appeals.
There are obvious efficiency arguments in support of a
restriction on prosecution appeals after failure by the
prosecution to object to a likely, or proposed, sentencing
course. It is analogous to the general rule that failure to
make an objection at trial will be a strong argument against a
later successful appeal on that issue.
It can also be argued that it is generally unfair to
advance at appeal an argument for a more severe sentence if
15
that argument was not advanced at first instance.
On the other hand, the requirement of prosecution
objection will be in some cases premised on the duty of the
prosecution to make submissions about the appropriate range of
sentence (generally imprisonment). But, as has been argued
earlier, this duty is inappropriate and blurs the distinction
between prosecution and sentencer.
Moreover, the requirement of prosecution objection may
have undesirable consequences. It could further involve the
prosecution in the actual sentencing decision. The timid or
uncertain sentencer who receives from the prosecutor either
approval or at least no disapproval of a proposed sentencing
course will be nearly always thus rendered immune from
successful appeal. From the other perspective, a prosecutor
who does not wish to fetter (or scuttle) the D P P ' s appeal
rights may feel that the safer course is to make submissions
opposing
a
proposed,
or
possible,
lenient
sentencing
disposition.
The restrictions on prosecution appeals apparently set
down in Everett v R seem too severe. The public interest does
not require such a straight-jacketing of the prosecution. It
'"
is clearly in the public interest that clearly inadequate or
inappropriate sentencing decisions can be and are reviewed.
This is not to argue for a great increase in prosecution
appeals, quite the contrary. There are powerful reasons for a
cautious approach to such appeals. But the appellate system
must be seen to be able to correct very poor sentencing
decisions and to be able to maintain
proper sentencing
standards. Failure to do so is likely to lead to government
intervention with the potential for over-reaction and heavyhandedness.
The victim in the sentencinq process
It is generally conceded that until quite recently the
victim had been for many years a largely neglected figure in
the criminal justice process. It is clear that the victim will
often have a special interest in the sentencing process and
particularly in the actual sentence passed. As Garkawe has
16
noted:
...the victim has an interest in an adequate sentence
being passed by the Court. This is due to the generally
accepted understanding that the longer the sentence, the
more serious the crime. As Wardlaw states,
the
punishment meted out by the courts is presumed to be
.psychological reparation' to the victim, which satisfies
his desire for revenge." Furthermore, "away from the
retributive dogma, victims want to be sure that the
court 'validates' the harm to them. Psychologically this
recognition is crucial to their recovery." Many argue,
perhaps correctly, that victims' views on sentencing
are irrelevant. However, the point is that relevant or
not, victims often perceive that the length of a sentence
reflects the way the court viewed the seriousness of
the
crime and the impact of the criminal act upon them.'''
The most appropriate role for the victim in the
sentencing process is still being worked out.
Currently in
Australia the major emphasis has been on victim impact
statements with various approaches being adopted.""
In South Australia the prosector is required by statute
to provide for the sentencing court information about the
impact of the offence on the victim. Section 7 of the Criminal
Law (Sentencinq) Act 1988 states in part:
7 ( 1 ) . . .the prosecutor must, for the purpose of
assisting a court to determine sentence for an offence,
furnish the court with particulars (that are reasonably
ascertainable and not already before the court in
evidence or a pre-sentence report) of (a) injury, loss or damage resulting from the
offence;
...
(2) The prosecutor may refrain from furnishing the
court with particulars of injury,loss or damage suffered
by a person if the person has expressed a wish to that
effect to the prosecutor.
It would appear that the purpose of this legislation was not
to change sentencing principles, but to make sure that the
court was more fully informed of information that was relevant
to sentencing.~"The positive duty imposed on the prosecutor
seeks to ensure this material is provided, rather than leaving
it to the victim of his or her own initiative to approach the
prosecutor.
This
provision seems clearly compatible with
the
17
traditional role of the prosecutor. It simply requires the
provision by the prosecutor of information in the form of
particulars that is relevant to sentencing.
An evaluation of victim impact statements in South
Australia conducted by the Office of Crime Statistics showed
that:
... the introduction of VIS [sc. victim impact statements]
in South Australia has not resulted in any significant
change in sentencing patterns' .'I"
However, the researchers noted that there was a real risk that
some victims would be further dissatisfied with the criminal
justice system because they had unrealistic expectations about
the effect of their input into the sentencing process on the
actual sentence. The researchers stated that there was a need
for victims to receive education or at least information about
the sentencing process, a task that would presumably be done
through the DPP.
.To prevent the possibility that raised expectations
will result in a decrease in satisfaction with
justice victims should be presented with a realistic
range of penalties and given explanations about the
considerations used by judges in sentencing.'"'
The West Australian Victims of Crime Act 1994 provides
for victim impact statements to be given at sentencing
hearings. Under this legislation a 'victim' is defined as :
(a) a person who has suffered injury, loss or damage as a
direct result of an offence, whether or not that injury,
loss or damage was reasonably foreseeable by the
offender; or
(b) where an offence results in a death, any member of
the immediate family of the deceased.
It will be noted that this definition extends to injury, loss
or damage even if it was not reasonably foreseeable by the
offender provided it was a direct result of the offence. The
clear implication is that a sentencing court must take into
account such injury, loss or damage.
Section 4 states that:
.a victim . . . may give a victim impact statement to a
court...to assist the court in deciding the proper
sentence for an offender.'
18
The statement must be given by the victim or, if the victim is
incapable of doing so, it can be given by another person on
the victim's behalf if the court approves. It would appear
that the victim has a complete discretion as to whether or not
to give a victim impact statement to the court and further
that the purpose of the victim impact statement is to assist
the court in sentencing.
The content of a victim impact statement is prescribed by
s.5 of the legislation. Such a statement, which can be in
writing or given orally,
.(a) gives particulars of any injury, loss or damage
suffered by the victim as a direct result of the
offence; and
(b) describes the effect on the victim of the commission
of the offence.'
The victim impact statement can also be "accompanied by a
report by any person who has treated the victim in connection
with the effects on the victim of the commission of the
offence." However, the victim impact statement
is not to
address the way in which or the extent to which the offender
ought to be sentenced. if'
The Act sets out in a Schedule
Guidelines As To How
Victims Should Be Treated. Under the legislation these
Guidelines apply to .public officers and bodies' which include
.the Director of Public Prosecutions and other people who are
involved in the prosecution of offences'. There are 12
Guidelines but surprisingly no guidelines such as principle 14
of the South Australian Declaration of Victim's Rights that a
victim shall have the right to have the full effects of the
crime upon him/her made known to the sentencing court.I
There is in the legislation, however, no provision
involving the DPP or the prosecution in the preparation or
presentation of victim impact statements. As a consequence it
is hard to see just what relation was intended by the
parliament between prosecutor and victim. This is a matter
where the prosecution is entitled to seek clear direction from
parliament as to its proper role.
In Victoria provision for victim impact statements is
'I
(1
19
made in the Sentencing (Victim Impact Statement) Act 1994. In
that legislation the definition of .victim' is essentially the
same as that in the West Australian provisions and includes
persons who suffer injury, loss or damage that was not
reasonably foreseeable by the offender provided it was a
r,
direct result of the offence.
The purpose of a victim impact statement is to assist the
court in determining sentence.I 1 The victim impact statement
may be made either in writing by statutory declaration or by a
combination of written and oral sworn evidence. However,
unlike the victim impact statement in the West Australian
legislation, the victim impact statement cannot be wholly
oral.
Under the Victorian legislation the victim is given a
more active role at the hearing. Section 95E states in part:
r
...
95E ( 1 ) A victim
may call a witness to give evidence
in support of any matter contained in the victim impact
statement.
(2) A witness who gives evidence under sub-section
(1) may be cross-examined and re-examined.
The effect of s.95E is apparently to make the victim who makes
a victim impact statement a party to the proceedings with a
right to separate representation." It is not the purpose of
this paper to discuss the appropriateness of such a role for
the victim of an offence. Suffice to say that victims have the
right to separate representation in many jurisdictions
The
point at issue here is the implications of this legislation
for the role of the prosecutor. As with the West Australian
provisions, under the Victorian legislation the relation
between the prosecutor and the victim in the provision of a
victim impact statement is not clear.
.I7'
Mr. Bongiorno Q . C . , the then DPP, issued in May 1994 a
Practice Note for the guidance of prosecutors. In that
Practice Note he stated that:
... prosecutors should be careful not to create the
impression (either to the victim or generally) that they
are acting for the victim or in any way presenting a case
on
the victim's behalf. Equally, no impression must be
given
that the Crown is unsympathetic to the victim.'
20
In the same vein the Practice Note states that it is not
appropriate for prosecutors to be involved in the drafting or
settling of victim impact statements or in giving advice,
other than in a general way, as to the contents of any such
statement. And finally the Practice Note makes it clear that
the role of the prosecutor in relation to a victim and that
victim's victim impact statement is that of amicus curiae.
Provisions enabling an active role for the victim at the
sentencing hearing (especially where the victim can have a
role separate from that of the prosecutor) are likely on
occasion
to
create
considerable difficulties
for
the
prosecutor, particularly when the victim's expectations of his
or her influence on sentence are inflated and at variance with
submissions made by the prosecutor. These difficulties will
generally be considerably lessened if the prosecution role
does not include submissions on range or quantum of sentence.
The sentencing hearing
Finally, a word about the sentencing hearing itself. The
great majority of cases, in both the higher courts and courts
of summary jurisdiction, are determined by a guilty plea and a
sentencing hearing. In these cases there is no public
ventilation of the matter through a trial. The sentencing
hearing is the public forum where the operation of the
criminal justice system is displayed. At this hearing the
community and any victim can witness .justice' being done. In
some cases the judicial officer relies on the depositions and
does not require or receive any summary of the case from the
prosecutor. In such cases an observer may not know what is
being alleged against the accused unless or until the
sentencer sets out the circumstances of the offence in handing
down sentence. There is much to be said for a summary of the
prosecution case being given in all cases at the outset by the
prosecutor. Such a summary performs a number of valuable
functions. It gives to the prosecution at the outset of the
hearing a clear role in the process. It also informs the court
and the community of what is being alleged against the
accused. It thereby assists in putting the plea and defence
21
submissions in context. In addition, it can clear up any
ambiguities or uncertainties in the depositions as to the
precise extent of the accused's criminal offending.
Conclusion
The sentencing hearing may not have the glamour or drama
of a trial, but it is at least as central to the operation of
criminal justice. Its central function requires a delicate
balancing between the needs of the community, the victim and
the offender. Any failure to maintain that balance will
inevitably detract from the quality of justice and from
community confidence in the justice and fairness of the
system. Central to that balancing is a proper allocation of
roles to the various participants in the process.
* Revised version of a paper given at the Conference entitled
Prosecuting Justice conducted by the Australian Institute of
riminology at Melbourne, 18-19 April, 1996.
1.Law Reform Commission of Australia, Sentencinq of Federal
Offenders, Report No.15, AGPS, 1980, p.61.
Responsibilities
2.
Humphries
C.,.The
Duties
and
Prosecuting Counsel'
[1955] Crim.L.R. 739 AT 747.
of
3. See R v Tait and Bartlev (1979) 24 ALR 473 at 477. See also
F. Rinaldi,.Dismissal of Crown Appeals Despite Inadequacy of
Sentence' (1983) 7 Crim.L.J.,306 at 330; F. Rinaldi,.Crown
Appeals
Against
Sentence
in
Australia'(l984)
Crim.L.J.l;I.G.Campbell,.The
Role of the Crown Prosecutor on
Sentence' (1985) 9 Crim.L.J.202; I.Temby, .The Role of the
Prosecutor in the Sentencing Process', (1986) 10 Crim.L.J.
199.
4. For example the provisions of the Crimes Act 1914 (Cth.)
dealing with the .sentencing, imprisonment and release of
federal offenders'; the Sentencinu Act 1989 (NSW); the
Victorian Sentencinu f Amendment) Act 1993. See also O'Brien
(1991) 57 A Crim R 80 and also Law Reform Commission of
Australia, Sentencinq: Procedure Discussion Paper No.29,
1987,par.103,p.63; R.Fox and A.Freiberg, .Silence is not
golden: the function of Prosecutors at sentencing in
Victoria', (1987) Law Institute Journal 554.
5.In Prosecution Policy of the Office of the Director of
Public Prosecutions ( New South Wales) issued December 1995,
under the heading .The Role of the Prosecutor' it is stated:.A
prosecutor is a "minister of justice". The prosecutor's role
is to assist the court to arrive at the truth and to do
justice between the community and the accused according to law
and the dictates of fairness.
22
A prosecutor is not entitled to act as if representing private
interests in litigation. A prosecutor represents the community
and not any individual or sectional interest. A prosecutor
does not have a "client" in the conventional sense. A
prosecutor acts independently, yet in the public interest.'
(my emphasis). See also the statement of Deane J in Whitehorn
v The Oueen (1983) 152 CLR 657 at 663: ,Prosecuting counsel in
a criminal trial represents the State.'
6. [1983] 3 NSWLR 356 at 359.
7. (1981) 28 SASR 362 at 364.See also McCullouuh (1982) 6 A
Crim R 274; R v M [1991] 2 Qd R 68; Burrows (1995) 79 A Crim R
154.
8. [1988] VR 466 at 472.
9. Ibid., at 472.
lo. 124 ALR 529 at 537.
11. R v Tait and Bartley 24 ALR 473 at 477.
12. Everett v R 124 ALR 529 at 534. For a rather different
approach see Morris (1992) 61 A Crim R 233 at 239-40.
13. Temby I.,.The Role of the Prosecutor in the Sentencing
Process' (1986) 10 Crim.L.J. 199.
14. R v Tait and Bartley 24 ALR 473; R v Rumpf [1988] VR 466;
R v Gamble [1984] 3 NSWLR 356; R v Wilton (1981) 28 SASR 362
at 364.
15. R v Rumx>f [1988] VR 466; I.G.Campbel1, op.cit.,p.208-210.
16. Pecora v R [1980] VR 499
1 7 . R v Tait and Bartley 24 ALR 473 at 477.
18. R v Tait and Bartley 24 ALR 473; R v Rumpf [1988] VR 466.
19. R v Beresford (1972) 2 SASR 446; Casey and Wells (1985) 20
A Crim R 191.
20.Everett v R 124 ALR 529 at 534.
21. Everett v R 124 ALR 529; R v Wilton (1981) 28 SASR 362 at
368; Economedes (1990) 58 A Crim R 466.
22. Casey and Wells (1985) 20 A Crim R 191 at 196; Shrubsole v
Rodriguez (1978) 18 SASR 233 at 236-7. For a different point
of view see G.Zellick,,The Role of Prosecuting Counsel in
Sentencing' [1979] Crim. L.R. 493, especially at 499.
23.(1986) 20 A Crim R 191.
23
24. Ibid.,p.l96.
25.(1994) 73 A Crim R 299 at 305.
26. Similar provisions are established for summary hearings by
the Justices Amendment (Addresses on Sentences) Act 1987.
27.Parliamentary Debates, Tasmania, 27 October, 1987, p.4531.
28. These Guidelines are reproduced in Appendix C of Law
Reform Commission of Australia, Sentencins : Procedure
Discussion Paper No.29, 1987.
29. See for example R v Smith (1990) 54 SASR 549. See also
Drumqoon, unreported judgement of the South Australian Court
of Criminal Appeal, 13 December 1995, dealing with the
%tariff' for armed robbery. See also M.Hinton,.Expectations
Dashed: Victim Impact Statements and the Common Law Approach
to Sentencing in South Australia. (1995) 14 University of
Tasmania Law Review 81 at 90, and R v Warfield (1994) 34 NSWLR
200 at 212 (Hunt CJ at CL giving the judgement of the New
South Wales Court of Criminal Appeal).
30. For example, in the Sentencinq Act 1991 (Vic.) section
5(3) -(7) effectively create a hierarchy of sentencing
sanctions. Thus s.5 ( 6 ) states:
.A court must not impose 'a community-based order unless
it considers that the purpose or purposes for which the
sentence is imposed cannot be achieved by imposing a
fine.'
31.Fox and Freiberg,.Silence is not golden: the function of
Prosecutors at sentencing in Victoria', (1987) Law Institute
Journal 554 at 558.
32. R v Travers and Davies (1983) 34 SASR 112 at 115 per Legoe
J. See also Law Reform Commission of Australia, Sentencing:
Procedure Discussion Paper No.29, 1987. par.104, p.63.
33. See, for example, R v Malvaso (1989) 50 SASR 503; Malvaso
x..,B89 ALR 34.
34. (1982) 30 SASR 212 at 212-3.
35. 24 ALR 529 at 531.
36.Ibid.,at p.532.
37. The Victorian Director of Public Prosecutions has stated
that the decision of the High Court in Everett v R .has
significantly affected the Director's policy with respect to
the bringing of Crown appeals against Sentences to the
Victorian Court of Appeal.'(Director of Public Prosecutions
Victoria, Annual Report 1994 - 1995, p.40.
38. Ibid., at p.532.
24
39. See R v Warfield (1994) 34 NSWLR 200 a successful Crown
appeal against the inadequacy of a custodial sentence imposed
after a sentence indication hearing where the Court of
Criminal spoke of the element of "triple jeopardy" involved
(at p.210).
40.See text at Note 34.
41.Griffiths v R(1977) 137 CLR 293 at
approval in Everett v R 124 ALR 529 at 532.
310,
quoted
with
42. In Acerbi, a successful Crown appeal against sentence,
Rowland J, giving the judgement of the West Australian Court
of Criminal Appeal, stated: ,In my view fairness to the
accused must play a secondary role to what should appear to be
fair to the community as a whole and perhaps others who have
been guilty of similar offences . . ' . ((1983) 11 A Crim R 90 at
92.)
43.S. Garkawe ,*The Role of the Victim During Criminal Court
Proceedings', (1994) 17 UNSWLJ 595 at 602.
44. For a recent judicial comment see the remarks of Murray J
in ff ((1995) 81 A Crim R 88 at 106:'..the prosecution of a
criminal offence by a public prosecuting authority is not in
any sense an action brought on behalf of the victim. The
person has, and should have, no ownership of the process of
prosecution, and that person can have no capacity to dictate
to the court what he or she desires should be the outcome.'
See also R v Pinder (1992) 8 WAR 19 at 39-40; p (1992) 64 A
Crim R 381 at 385-7.
45. M.Hinton, *Expectations Dashed: Victim Impact Statements
and the Common Law Approach to Sentencing in South Australia',
(1995) 14 University of Tasmania Law Review 81 at 85.
46.E.Erez et al., Victim Impact Statements in South Australia:
An Evaluation, Research Report, Office of Crime Statistics
Attorney-General's Department, 1994, p.69.
47. E.Erez et al., op.cit., p.57.
48. Victims of Crime Act 1994, s.5(2).
49. See D.Bugg Q.C.,*the Implications for the Administration
of Justice of the Victim Impact Statement Movement', (1996) 5
Journal of Judicial Administration 155 at 158-160.
50. For a discussion of the implications of this definition on
sentencing see R v Miller [1995] 2 VR 348.
51. Sentencinu (Victim Impact Statement) Act 1994, s.95A(l).
52. See D.Bugg Q.C., op.cit., p.163, quoting the ruling of
Coldrey J. of the Victorian Supreme Court given on 19 August,
1994 that
a victim, given direct access to the Court...is
25
entitled to legal representation.'
53.See S. Garkawe, op.cit., p.605.
26