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Barbaro and sentencing practice in Queensland

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Published under Law Reform, News

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April 21, 2016

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On the 19th of April 2016 the Attorney-General for Queensland, the Honourable Yvette D’ath, [LINK: http://statements.qld.gov.au/Statement/2016/4/19/barbaro-amendments-herald-important-changes-for-legal-profession] announced the passing of amendments to the law in Queensland which will “reinstate the ability of a court to receive submissions from both prosecution and defence on the appropriate sentence, or the bounds of the range of appropriate sentences that should be imposed.”

This announcement likely relates to the passing of the Criminal Law (Domestic Violence) Amendment Bill (No.2) 2015 which, according to the Attorney-General, was necessary “to improve the consistency of sentencing and efficiency of Queensland’s courts” in the wake of the decision of the High Court in Barbaro & Zirilli v the Queen [2014] HCA 2. The decision in Barbaro, in essence, precludes criminal lawyers (in particular prosecutors) from making submissions to a sentencing court about what penalty, or range of penalties, might be appropriate in a given case.

When it was first handed down, the Barbaro decision was a bitter pill for many criminal law practitioners to swallow because it flew contrary to long established sentencing practice. In the pre-Barbaro era it was commonplace for lawyers on both sides of a criminal matter to make submissions about what penalty was appropriate to apply in the case at hand, whether by reference to specific features of the offence, the offender, or some other seemingly relevant matter. Indeed it was not uncommon for lawyers to contend for a specific sentence, be it a fine of a particular amount or a prison sentence of a particular duration.

Barbaro held that this type of penalty submission is nothing more than an irrelevant expression of an opinion which is impermissible for a prosecutor (and by extension a defendant’s lawyer) to offer in a criminal court.

The Criminal Law (Domestic Violence) Amendment Bill (No.2) 2015 will amend section 15 of the Penalties and Sentences Act 1992 (as well as section 150 of the Youth Justice Act 1992) to allow a court to receive ‘sentencing submissions’ as information on sentence. ‘Sentencing submissions’ will then be defined ‘to include a sentence, or range of sentences, considered appropriate for the court to impose’.

This amendment, according to the Attorney-General’s media statement, is intended to return sentencing practice in Queensland to its pre- Barbaro footing and I expect that it will do just that. Whether this is a wholly good thing is perhaps a topic best left for another day.

About the Author

Colin brings extensive experience in the criminal law to bear in pursuing the best possible outcomes for clients of Armstrong Legal in Queensland. Colin has appeared in every Magistrates Court in the South-East, as well as many courts, including the District and Supreme courts, in the rest of the state, on a wide range of criminal matters. View Colin's profile

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