The State of Play in Criminal and
Regulatory Prosecutions in the PostBarbaro World.
Paul McCowan
Jacob Owen
It is common practice that if a defendant to a criminal or regulatory prosecution indicates
their intention to plead guilty to charges, they will attempt to gain insight in to the likely
sentence prior to formally entering the plea. In this case, four recent decisions have redefined the prosecutor’s role in sentencing proceedings for both criminal and regulatory
prosecutions. The practice of a criminal prosecutor offering submissions on sanction
range at sentencing judge in this consideration, was redefined drastically in 2013 with the
High Court of Australia’s decision in Barbaro v The Queen; Zirilli v The Queen [2013] HCA
2. Since this time, Barbaro has been interpreted by R v Ogden [2014] QCA 89, CMB v
Attorney General for New South Wales [2015] HCA 9 and Director, Fair Work Building
Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC
59, the latter of which has extended to applicability of Barbaro to regulatory prosecution
practice.[1]
The practical consequence is that these decisions have restricted the ability of a
prosecutor to engage in negotiation between prosecutor and defendant where the
defendant seeks to gain insight in to their likely penalty upon sentence.
What does this mean for a prosecutor?
Following these cases, the sentencing courts in criminal or regulatory prosecutions will no
longer request or accept a submission from the prosecutor of an available sentencing
range. Where one is agreed between the prosecutor and defendant, it will likely go only
to demonstration of remorse, and other relevant considerations discussed below. The
indeterminacy of agreed sanctions likely means that prosecutors will be more reluctant to
offer a sentence range to a defendant without informing them of the effect of these
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decisions.
However, it remains the duty of the prosecutor to assist the court. The prosecutor should
therefore as far as they are able without offending their guiding principles, do the
following:
1. Agree to factual matters with the defendant and present them to the court; [2]
2. Agree to, or make submissions on, the application of the law to these factual
matters; [3]
3. Supply comparable sentencing decision transcripts to the defendant and the court;
[4]
4. Make submissions regarding their factual similarity and seriousness in light of the
agreed facts. [5]
What does this mean for a defendant?
The most significant practical repercussion of these cases is that a defendant may no
longer confidently rely on an agreement following plea bargaining with the prosecution.
These decisions will create uncertainty for defendants when intending to plead guilty to
prosecution matters.
Weighing against this disadvantage to a defendant are the following principles as
relevant to sentence:
1. The determination of the appropriate sentence is one that rests solely with the court;
[6]
2. Any agreement or submissions on sentence by a prosecution (or as agreed
between the prosecution and defence) is no more than an expression of opinion;[7]
3. There is no reason to divert from this view in regard to regulatory prosecution
proceedings;[8]
4. The uncertainty created by these principles for defendants is an inevitable
consequence of entrusting prosecutions to the judiciary.[9]
Realistically speaking… In reality, where comparative sentences are provided by the prosecution, the defendant
will have some idea as to a sentence which may be imposed, however as previously
noted there will be some degree of uncertainty. A defendant will then make submissions
at sentence regarding the timing of their plea,[10] demonstrations of remorse[11] and/or
any evidence of assistance offered or given to the authorities which is in some way
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deserving of leniency.[12] These submissions will be measured by the court against
considerations of public interest and public perception of the judicial system.[13] None of
which have been altered by the recent decisions.
[1] “It is generally accepted that there are at least some similarities between the process
by which a criminal sentence is quantified and the process for quantifying a pecuniary
penalty”: Director, Fair Work Building Industry Inspectorate v Construction, Forestry,
Mining and Energy Union [2015] FCAFC 59 [19].
[2] Barbaro v The Queen; Zirilli v The Queen [2013] HCA 2 [39].
[3] Barbaro v The Queen; Zirilli v The Queen [2013] HCA 2 [39].
[4] R v Ogden [2014] QCA 89 [7].
[5] Barbaro v The Queen; Zirilli v The Queen [2013] HCA 2 [39].
[6] CMB v Attorney General for New South Wales [2015] HCA 9 at [64]; referring to GAS v
The Queen (2004) 217 CLR 198 at 211 [30].
[7] Barbaro v The Queen; Zirilli v The Queen [2013] HCA 2 [7].
[8] Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and
Energy Union [2015] FCAFC 59 [239].
[9] Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and
Energy Union [2015] FCAFC 59 [242].
[10] A relevant consideration for a sentencing judge is for example, whether an early guilty
plea has avoided further costs associated with ongoing litigation: Barbaro v The Queen;
Zirilli v The Queen [2013] HCA 2 [31].
[11] Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and
Energy Union
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[2015] FCAFC 59 [3].
[12] Barbaro v The Queen; Zirilli v The Queen [2013] HCA 2 [30].
[13] Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and
Energy Union [2015] FCAFC 59 [3].
Contact the article author for more info
Paul McCowan
Administrative Law | Brisbane
T: 07 3231 0688
E: [email protected]
Jacob Owen
ADMINISTRATIVE LAW
T: 07 3231 0409
E: [email protected]
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