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New law will enable judges to entertain the opinions of prosecutors and defence lawyers

The new law restores the ability of prosecutors and defence lawyers to suggest appropriate sentences for the sentencing judge’s consideration

A new law in Queensland will restore the ability of judges to entertain the opinions of prosecutors and defence lawyers concerning the appropriate sentence to impose in a criminal case. The change is a response to the High Court’s ruling in the Barbaro case.

The Barbaro decision

In Barbaro & Zirilli v the Queen [2014] HCA 2, the High Court ruled that Barbaro was not treated unfairly when the sentencing judge refused to hear the prosecutor’s opinion about the sentence that might fairly be imposed. Barbaro had entered a guilty plea to certain drug offences. During negotiations with the prosecution, the prosecutor expressed an opinion as to the range of sentences that would be appropriate for the offences. Barbaro presumably believed the sentencing range was reasonable and anticipated that the prosecutor would share that opinion with the court. Instead, the court did not want to hear from the prosecutor concerning sentencing, and imposed a sentence of life with a 30-year non-parole period.

The High Court held that the sentencing judge alone is responsible for imposing a sentence, and that the judge is not required to listen to a prosecutor’s opinion on the matter. The Court held that it was not unfair for the sentencing judge to act without considering the prosecutor’s views, even if the accused expected the prosecutor to make a favourable recommendation. The Court then disapproved of the practice of soliciting or considering the prosecutor’s (and presumably the defence lawyer’s) thoughts about an appropriate sentence.

The Barbaro decision represented a substantial change in the law. Before Barbaro, it was common for prosecutors to suggest a range of sentences that the prosecutor considered to be appropriate. Defence lawyers did the same, or suggested a specific sentence. Defence lawyers considered those recommendations to be a part of effective advocacy for a client. The High Court, however, suggested that such expressions of opinion were irrelevant and impermissible.

The new law

On May 5, 2016, the Parliament of Queensland passed the Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015. The new law reinstates the ability of a Queensland court to listen to the opinions of both the prosecutor and the defence lawyer regarding an appropriate sentence.

It remains the law that sentencing is within the power of the judge alone. The judge is free to reject sentencing submissions and to impose whatever sentence the judge deems to be just, provided that the judge follows the law.

Whether the change in the law will be good or bad for individuals facing sentencing will depend upon the circumstances. It the prosecutor is disposed to recommend a favourable sentence, it may well help the accused for the sentencing judge to consider that opinion. If the prosecutor urges the court to impose a harsh sentence, the accused might wish that the law still required the prosecutor to refrain from making a sentencing submis

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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