SENTENCING - LAWS4314

Week 4

Sentencing Hearings, Roles and

Ethical Responsibilities

Associate Professor Anthony Hopkins

ANU Law School
anthony.hopkins@anu.edu.au 1
Acknowledgement of Country
Seminar Outline

1. Purpose of today:
• To help you work out where you stand and what you stand for?
2. Questions about the Submission Assessment
3. Where does your submission fit in to the sentencing process?
4. Breakout Group: Roles and Ethical Responsibilities of Prosecution and Defence.
5. Report Back

Break

6. Advocacy in Sentencing – Persuasion – what are you seeking to persuade the court
to do?
7. Submissions on Sentence: Prosecution
8. Submissions on Sentence: Defence
9. Victim impact statements
Submission Assessment Questions
Quick Feedback on Muthurajah and Morrisroe Podcast

Was it helpful? Did you learn something?

Where does your submission fit into the process?

1. Have a look at the basic procedure in a sentencing hearing (pp 106-107). Identify
where your submission will fit. What happens after you have made your
submission?

2. What will already have happened by the time you commence your submission??
• How are the facts of the offence established?
• If pleads not guilty
• If pleads guilty
• How are facts in relation to the offender established?
• What happens if facts are disputed? Aggravating facts? Mitigating Facts?
• Does the Evidence Act 2011 (ACT) apply? see s 4

3. What is plea bargaining? charge bargaining? bargaining about the facts?

• Whose interests might be forgotten here?
• Victims of Crime Act 1994 (ACT) – s 16B DPP to consider victims' views about dealing with
charges
Breakout Group: Roles and Responsibilities of Prosecution and
Defence.

You will have 10 minutes today to consider the following questions, spending
5 minutes on each question. Please appoint a spokesperson to report back.
Let this be a brainstorm that informs the way you will think, stand and submit
in your assessment:

1. What are the key roles and ethical responsibilities of the prosecutor in a
sentencing hearing? What is their purpose? What should their stance be?
Do you think it would be difficult to maintain this stance?

2. What are the key roles and ethical responsibilities of the defence in a
sentencing hearing? What is their purpose? What should their stance be?
Do you think it would be difficult to balance competing ethical
responsibilities?
Report Back 1: Roles and Responsibilities of Prosecution

What are the key roles and ethical responsibilities of the prosecutor in a
sentencing hearing? What is their purpose? What should their stance be? Do
you think it would be difficult to maintain this stance?
Report Back 2: Roles and Responsibilities of Defence

What are the key roles and ethical responsibilities of the defence in a
sentencing hearing? What is their purpose? What should their stance be? Do
you think it would be difficult to balance competing ethical responsibilities?

Scream Question:
You are defence counsel. What do you do if the prosecutor has failed to
tender the criminal record of your client? (you have a 14 page criminal
record sitting in your file!)
Take a Break
 Advocacy in Sentencing – Where does Persuasion fit in?

Let’s put some thoughts out there on the CHAT

1. Identify the brief you have chosen and your role?

2. What outcome are you seeking?

Are you permitted to make a submission with respect to the outcome you
seek?
Submissions on Sentence: Prosecution
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2

1. What happened in Barbaro? Was there an agreement between defence and

prosecution? What submission did the prosecutor seek to make? What did the
judge do?

2. What did the High Court say about whether a prosecutor can make a
submission about the range or bounds of available sentences? Why?

3. You are the prosecutor: how does this impact the submission you will make
and the focus of your submission?

4. Does Barbaro prevent a prosecutor from making a submission about the

appropriate type of disposition? See Matthews v The Queen [2014] VSCA 291
(text p114)

5. What did Christina Muthurajah say about her approach as a prosecutor?

Submissions on Sentence: Defence
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2

1. You are the defence: how does Barbaro impact the submission you will
make?

2. Will you make a submission with respect to the appropriate disposition? See
Matthews v The Queen [2014] VSCA 291 (text p114) If so, why?

3. What did Beth Morrisroe say about her approach as defence counsel?

4. Why do the text authors say that the instinctive synthesis approach increases
the importance of defence submissions? Do you agree? Does the same point
apply for prosecution submissions?

5. You are the defence: when would you call your client?

6. Consider the extract from the case of Lytras v The Queen [2020] VSCA 150
(text p 119-122) – what stands out? How can you do better than this?
 Victim Impact Statements in a sentencing hearing

1. How is a victim impact

statement taken into
account? (143-149) See
s 33(1)(f) and s 53
Crimes Sentencing Act
2005. What if there is no
victim impact statement?

2. What does defence

counsel risk if they
choose to cross examine
a victim and challenge
their claims with respect
to harm? How do you
think this is resolved in
practice?

This is a big topic and we will return to it in the second half of the semester when we
focus on restorative justice!
Thank you