Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291

Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291 - VSCA 2014 case summary — Zoe

[16]

'stating the bounds of an "available range" of sentences is apt to mislead.';[10]
'The practice ... depends upon the prosecution acting not only fairly (as it must) but in the role ... of "a surrogate judge". That is not the role of the prosecution.'[11];
'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 [to the prosecution].';[12]
'in cases ... where pleas of guilty avoid very long and costly trials ... the prosecution may have a view of the available sentencing range which gives undue weight to the avoidance of trial.';[13]
'The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance ... with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution.';[14]
'Fixing the bounds of a range within which a sentence should fall ... wrongly suggests that sentencing is a mathematical exercise ... [in that] ... [i]f 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 ... [and] if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.';[15]
'If a party makes a submission to a sentencing judge about the bounds of an available range of sentences, the conclusions or assumptions which underpin that range can be based only upon predictions about what facts will be found by the sentencing judge.';[16]
'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 ... considers should be reached or a statement of the bounds within which that result should fall.';[17]
'Contrary to the view of the majority in MacNeil-Brown, the prosecution's conclusion about the bounds of the available range of sentences is a statement of opinion, not a submission of law.'[18]

[24]

[A]ny determination of the bounds of an available range of sentences would have to depend upon first, what considerations are judged to bear upon the fixing of sentence and second, what effect is given to those considerations. Hence, if a party to sentencing proceedings proffers a range of sentences as the range within which a particular sentence should be imposed upon an offender, the range will necessarily reflect conclusions or assumptions (stated or unstated) which have been made about what considerations bear upon sentence and what weight is given to each. As Buchanan JA rightly said in MacNeil-Brown, even if those conclusions and assumptions were all to be exposed, 'it is not possible to explain the part played by those facts and factors in arriving at the figures advanced by counsel without resorting to the mathematical approach' to sentencing which this court has rejected.

If a party makes a submission to a sentencing judge about the bounds of an available range of sentences, the conclusions or assumptions which underpin that range can be based only upon predictions about what facts will be found by the sentencing judge. ... In the present cases, for example, counsel for Mr Zirilli told the sentencing judge that the prosecution accepted that Mr Zirilli's guilty plea indicated his remorse. Presumably the range of sentences which the prosecution indicated in correspondence with Mr Zirilli's lawyers reflected this view of the matter. But the sentencing judge did not accept that Mr Zirilli was remorseful. Necessarily, then, the range of sentences proffered by the prosecution was fixed on a false basis.

This serves to demonstrate that bare statement of a range tells a sentencing judge nothing of the conclusions or assumptions upon which the range depends. ...

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 the available range. If the judge is not sufficiently informed ... the prosecution's proffering a range ... will not assist the judge in carrying out the sentencing task in accordance with proper principle.

...

Contrary to the view of the majority in MacNeil-Brown, the prosecution's conclusion about the bounds of the available range of sentences is a statement of opinion, not a submission of law. A statement of the bounds of the available range of sentences is a conclusion which depends upon identifying (and in many cases assuming) the facts and circumstances relevant to the offence and the offender and striking a balance between the many competing considerations which may bear upon the sentence.[23]

[183]

We have had the considerable benefit of reading the reasons of Warren CJ, and Nettle and Redlich JJA in draft. Their Honours have concluded that the applications of Tuyet Thi Vu and Lee James Mathews ought fail, and that of Sayeed Hashmi should succeed.[61] Substantially for the reasons advanced by their Honours, we agree with the dispositions proposed in each case. We wish to add some observations of our own, however, concerning a judge's receipt of a sentencing range.
To the extent that their Honours' reasons might be understood as concluding that for a sentencing judge to take into account a submission advanced by the prosecution as to the range of sentences open to be imposed - colloquially, a MacNeil-Brown[62] range - is not to take into account an irrelevant consideration, with respect, we cannot agree. It is necessary that we set out our reasons for that disagreement.
Warren CJ, Nettle and Redlich JJA conclude that a MacNeil-Brown range is not a consideration; that is, it is not a finding of fact or law which are the bases of a sentencing decision. Their Honours hold that a MacNeil-Brown range is a proposed range for the sentence ostensibly derived from the synthesis of its own considerations.[63] Moreover, it appears that their Honours do not understand the High Court in Barbaro[64] to be saying that to take into account a MacNeil-Brown range is to take an irrelevant consideration into account.[65] Rather, their Honours' view is that the essence of the majority decision in Barbaro is that the practise of giving a MacNeil-Brown range should cease because of the risk of it leading judges into error.[66] We respectfully disagree with these propositions.
In light of Barbaro, it must now be accepted that a submission concerning range is the expression of an opinion proffered in order to influence the sentence to be imposed. It is put forward to persuade a judge that the exercise of the sentencing discretion will only be sound if the sentence the judge imposes falls within the range advanced. It is an opinion which is irrelevant to the exercise of the sentencing discretion. It advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts in order to arrive at the sentence to be imposed.[67] It is for that reason that the High Court concluded that such a 'statement of bounds' should not be permitted to be made. An error in principle had been exposed such that the decision in McNeil-Brown should be overruled.[68]
Before proceeding further, we should make this clear. When we speak of the MacNeil-Brown range, we contemplate only submissions as to the quantified range of sentences of imprisonment - days, weeks, months or years - put forward by the prosecution as being, in their view, an appropriate disposition. It remains proper for the prosecution to make submissions as to the range of sentencing options available in a particular case, so as to assist the sentencing judge to avoid appealable error. Indeed, closely analysed, that was one of the main premises that underlies the decision of the court in Casey and Wells,[69] which was largely the underpinning of the majority's reasons in MacNeil-Brown. In MacNeil-Brown, the majority, having cited extensively from Tait and Bartley[70] and Casey and Wells, and having referred to other authorities, summarised their view of the effect of Casey and Wells:

[196]

Further, in Burchielli,[81] to which reference was also made in Casey and Wells, when dealing with a Crown appeal, Young CJ and Lush J remarked that, notwithstanding that the Crown now could appeal a sentence, they did 'not envisage the development of a practice under which prosecutors make submissions on the extent of the punishment to be imposed'.
Hence, in our view, prior to this Court's decision in MacNeil-Brown, the prosecutor had a duty to assist the sentencing court to avoid appealable error by drawing attention to the range of sentencing options available, and by taking the court to relevant statutory provisions (and the like). It was also appropriate to draw attention to the range of sentences of imprisonment open by reference to sentencing statistics and by reference to comprehensive statistical data gathered in texts on sentencing. The view of the individual prosecutor, or even the Director of Public Prosecutions himself, as to the appropriate sentence to be passed was, however, irrelevant; and the prosecution could not urge the court not to impose a sentence less than a specified sentence.
In our opinion, Barbaro does no more than revert to the position that existed prior to MacNeil-Brown. Prosecutors should thus harbour no misunderstanding of their roles in the wake of the High Court's decision. The essential duty of the prosecution remains to assist the sentencing court to avoid appealable error. In order to fulfill that duty, the prosecution must ensure that the facts (including matters in aggravation and mitigation) are adequately presented. Ensuring an adequate presentation of relevant facts may involve the correction of any factual errors flowing from the presentation of the defence case. It may also involve fair and balanced testing of the defence case. Moreover, the prosecutor should ensure (as, indeed, must defence counsel) that the sentencing court is acquainted with the pertinent legal principles. Often this will require the prosecutor to draw the court's attention to relevant statutory provisions and case law that bear on the exercise of the sentencing discretion (unless, of course, to do so would be otiose because, for example, the governing principles were trite). If a sentencing option is suggested, the adoption of which may lead the court into error - whether because the sentence simply is not open as a matter of law, or the resulting sentence will be inadequate or excessive - the prosecution is duty-bound to assist the court to avoid error. Although a prosecutor may not offer an opinion as to the severity of sentence thought appropriate, including the advancement of a MacNeil-Brown range, nonetheless the prosecution may provide the court with statistics and comparable sentencing cases, so that the court may discern the kinds of sentences previously passed for the kind of offence for which sentence must be imposed.
As will become plain, in our view a judge who takes into account a MacNeil-Brown range - so that the proffered range materially influences the sentence imposed - takes into account an irrelevant consideration. Taking the proffered range into account in a material way vitiates the exercise of discretion.[82] But we make this clear. Mere receipt of a submission as to range does not of itself lead to the conclusion that the exercise of the sentencing discretion had miscarried. It is only if it can be discerned that the judge has acted on the submission in a manner that has influenced the sentencing result that sentencing error is demonstrated. Ordinarily, in circumstances where the Crown has offered a sentencing range, and a sentencing judge is minded to impose a sentence which is within (or close to) the proffered range, so as to avoid the conclusion that the range has been taken into account in a material way, we would expect the judge who has determined not to take the range into account to say so in his or her reasons for sentence.[83]
Sentencing is the ultimate exercise of judicial discretion. If a sentencing judge acts upon a wrong principle, mistakes the facts, does not take into account some material consideration or permits 'extraneous or irrelevant matters to guide or affect him [or her]', then then the sentencing discretion miscarries.[84] A MacNeil-Brown range offered by the prosecution is, in our opinion, an 'extraneous or irrelevant matter'. If the sentencing judge permits it to guide or affect him or her, then a sentencing judge's exercise of discretion miscarries. Indeed, in Barbaro the High Court observed that in fixing sentence a judge exercises a discretionary judgment,[85] and acknowledged that reference to an 'available range' of sentences derives from the principles in House.[86]
Barbaro involved a challenge to sentences passed for drug offending. Each applicant argued that the sentencing hearing was procedurally unfair because 'the sentencing judge failed to take into account a relevant consideration'.[87] The sentencing judge said at the outset that she did not seek, and would not receive, any submissions from the prosecution as to the appropriate range of sentences she could impose. It was argued that the judge 'thereby precluded herself from taking account of a consideration relevant to sentencing'.[88] The applicants contended that, had the prosecution been permitted to put them forward, they could have used the prosecution's views as to range to their advantage in the course of the sentencing hearing.[89]
Rejecting the applicants' contentions, the majority in the High Court (French CJ, Hayne, Keifel and Bell JJ) thought that the applicants' arguments depend on two premises, each of which was wrong. The first wrong premise was that the prosecution is permitted (or required) to put to a sentencing judge the prosecution's view of the bounds of the range of sentences which may be imposed. The second wrong premise was that such a submission is a submission of law.[90] As the majority made clear, the prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. As such, its expression 'advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed'. To permit such a submission is the practice 'is wrong in principle'.[91] Given that is so, the prosecution 'is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge'.[92]
The majority made plain that fixing the bounds of a range within which a sentence should fall wrongly suggests that sentencing is a 'mathematical exercise', involving 'some exercise in addition or subtraction'. A sentence must be arrived at by balancing 'many different and conflicting features'. Providing a 'bare statement of range' will not assist the judge in carrying out the sentencing task in accordance with proper principle,[93] since it 'tells a sentencing judge nothing of the conclusions or assumptions upon which the range depends'.[94]
Further, the majority said:

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