R v MacNeil-Brown; R v Piggott [2008] VSCA 190

R v MacNeil-Brown; R v Piggott [2008] VSCA 190 - VSCA 2008 case summary — Zoe

[93]

One of the functions and duties of a prosecutor is to assist the court to avoid error in the conduct of criminal proceedings, whether at trial or on sentencing. In a sentencing hearing a prosecutor should be ready to assist the court by drawing attention to any statutory maximum penalty applicable and to any particular sentencing options available or unavailable in the particular case. In addition, the prosecutor should be ready to make submissions about the sentencing range applicable to the offence(s) for which the person is to be sentenced.

In carrying out this function the prosecutor represents the Crown. He or she does not represent any particular Crown officer. In performing these functions a prosecutor should, as far as possible, avoid any appearance of giving a personal opinion, whether his or her own or that of any other Crown officer. Any submission should be made in the name of the Crown. It should be phrased in such a way as to obviate any possibility of its being seen as the opinion of a particular Crown officer. In the present case, the reference to the opinion of the Chief Crown Prosecutor, though undesirable, was not a material error.

Subject to that qualification, properly-formulated and neutrally-expressed submissions by the Crown as to matters of sentencing are to be encouraged. They should include, where appropriate, submissions as to the applicable range outside which a sentence would constitute sentencing error. For counsel to indicate the limits of the sentencing range is conducive to consistency of sentencing, which is a matter of fundamental importance to the criminal justice system.

Submissions of that kind can be of great assistance to a sentencing court. They can be contradicted appropriately in submissions by defence counsel and thus contribute to the attainment of a just result in the proceeding. Such submissions should not urge the imposition of any particular sentence, and above all should not convey any implication that rejection of the submissions might trigger a Crown appeal against sentence. The submission in the present case, we should add, conveyed no such implication.[60]

[171]

Ms MacNeil-Brown reported increasing levels of stress, particularly financial stress and emotional distress. She reported that she was experiencing depressed and lonely mood. She stated that her gambling behaviour increased, despite her attempting to obtain treatment.

Ms Macneil-Brown reported she was working for Price Waterhouse Coopers. She had completed a consultancy course and had been working long hours. She reported experiencing work load stress. Ms MacNeil-Brown stated she knew that she would be caught for her actions and was surprised that her deceit was not discovered earlier. She reported that she had lost control and her gambling addition was 'out of control'.

Ms MacNeil-Brown's behaviour became increasingly impulsive and irrational as she decompensated. Her thought processes became fragmented and she became disconnected from normal awareness of logical consequences for her pathological behaviour. As is often the case with pathological gambling addiction, she lost all insight into the bizarre behaviour patterns that spiralled out of control. Her descriptions indicate delusions and loss of contact with reality.

Ms Macneil-Brown reported internal conflict and dissonance regarding her behaviour. She reported she was working up to 70 hours per week over a one year period. She reported working at times, 6 days per week, 11 hours per day. Ms Macneil-Brown stated she was committed to her work and to the company, but at the same time, taking money to gamble, in an attempt to resolve her financial difficulties. This paradox further intensified her emotional decompensation.

Ms Macneil-Brown reported feeling angry and frustrated that she was unable to give her children what they needed. She reported that as a mother, she wanted to compensate for their father's alcohol abuse. She felt that they had been let down by their father.

Ms Macneil-Brown stated that initially she attended clubs for social contact to relieve her loneliness, after relocating from Bolwarra in country Victoria. She reported that the gambling addiction increased as the expenses of her daughter's education at a private college in Melbourne escalated. Her statements indicate that she progressively lost control as her addiction took over. Her pathological gambling was a misguided attempt to relieve depression. Her use of poker machines and clubs to combat loneliness only fed her addiction.

[247]

140 It is the judge who exercises the sentencing discretion, and not counsel. It is the judge who must make the necessary findings of fact. It is the judge who has the obligation to determine what weight should be given to the facts so found. The sentencing judge has to form a view as to the gravity of the offence and the part played by the offender. The judge has to determine not only what happened but how and why it happened. The judge has to determine the culpability of the offender. The judge has to find and articulate whether or not there are factors of aggravation. The judge must make a finding as to the harm suffered by the victim. The judge must consider the personal factors relevant to the offender and make findings as to factors of mitigation. The judge must consider the weight of each of those factors. Often the judge must form a view as to how burdensome the sentence might be for the particular offender in the light of factors, such as the prisoner's health, family issues and employment. The judge must give consideration to all of the above matters, and sometimes more, in the context of what is required to achieve the sentencing goals of general deterrence, denunciation, specific deterrence, rehabilitation and just punishment. Appropriate consideration of all of the above factors is required before the determination by the judge of a just sentence. The ultimate sentence to be imposed involves the exercise of a judicial discretion, which is the result of an 'intuitive synthesis' of all the relevant facts, circumstances and sentencing principles. The exercise of that discretion is the function of the judge and the judge alone. It is not the function of counsel. Neither counsel for the prosecution nor counsel for the defence will have examined all of the relevant factors with the same scrutiny and impartiality prior to the plea hearing. Nor should they be expected to do so, for it is not their function. It is difficult to see how counsel on either side by quoting a range of head sentences and a range of non-parole periods could provide a considered and impartial view which would be of any assistance at all to a judge whose duty it is to synthesise all of the relevant factors intuitively. The difficulty in sentencing is not the assessment of an appropriate range. It is the determination of the correct sentence in all the circumstances which creates difficulty for sentencing judges. A submission as to range should not be requested by a judge, nor should it be made by counsel, because, upon proper analysis, that submission is of no assistance to the judge in performing the task to be undertaken by him or her.

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Judgment (344 paragraphs)

Cases Cited (26)