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Thursday, 21 May 2009

Sentencing range

A few weeks ago I wrote about prosecutors duties on sentencing in light of the Court of Appeal's decision last year in R v MacNeil-Brown [2008] VSCA 190.

I wondered if the Court was saying prosecutors should provide submissions on sentencing off their own bat, or only when invited by the Court.

Yesterday, the Court of Appeal delivered its judgment in DPP v Monteiro [2009] VSCA 105. Monteiro was a Director's appeal against inadequate sentence.

To me, the interesting thing was that the Court of Appeal asked the Director to identify what he argued the appropriate sentencing range was. The Director did — and was quite specific. Here's the chart the Director provided:


APPLICABLE SENTENCING RANGE

Count 1 — intentionally causing serious injury
Sentencing range: 4 — 5 years' imprisonment

Count 2 — common assault
Sentencing range: 9 — 12 months' imprisonment

Cumulation
Sentencing range: 3 — 6 months' imprisonment

Total effective sentence
Sentencing range: 4 years 3 months — 5 years 6 months imprisonment

Non-parole period

2 — 3 years' imprisonment


(The Court agreed the original sentence was inadequate, but decided not to use its discretion to alter the sentence.)

Traditionally, Courts didn't want to hear such detailed submissions on sentencing ranges. They were concerned that the sentencing process might turn into some perverse form of bartering or bidding, with opposing counsel jockeying for an acceptable tariff. Courts accepted that counsel could discuss the appropriate sentencing level — jail, community based order, fine, etc. But the tension I mentioned in my earlier post between judicial officers who thought it submissions on range hindered or helped made it difficult to know when courts wanted to hear such submissions, and with what level of precision.

It seems reasonably clear appellate courts want fairly precise submissions. But...they want them backed up with relevant sentencing statistics, and reference to precedent. That means the advocate who wants to say something about sentencing range better come prepared.

And I still think it isn't entirely certain if they want them in all cases, or only when requested, as happened in this appeal. But again, it seems courts are asking for that level of detail. At [31] in this judgment, Buchanan JA noted the prosecutor in the County Court "did not say that a sentence of three years’ imprisonment or less was not available to the sentencing judge." That suggests specific range was discussed at the County Court, and that the Court of Appeal was implicitly endorsing and relying on that discussion.

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