R v Volkov

The applicant sought leave to appeal against his sentence on the ground that it was manifestly excessive. The Crown in response argued that his counsel’s concession before the sentencing judge that the sentence ultimately imposed was appropriate was a factor relevant to the Court of Appeal’s discretion to grant leave to appeal. McMurdo JA, writing the reasons of the Court on this point, clarified that it is not. Counsel’s submissions on sentence do not displace nor qualify the appropriate law, nor do they expand or confine a judge’s discretionary power.

Fraser and McMurdo JJA and Williams J

22 April 2022

The issue

The applicant, Mr Volkov, applied to the Court of Appeal for leave to appeal against his sentence on the ground that it was manifestly excessive. [12].

Before the sentencing judge, the applicant’s counsel had conceded that the sentence ultimately imposed was an appropriate one. [9].

One issue on appeal was whether this concession was relevant to the Court’s discretion to grant leave. It was argued by the respondent that the submissions before the sentencing judge, agreeing to the outcome remained, “a matter of weight in considering a discretionary application by this Court for leave to appeal”. [9].

Consideration

Justice McMurdo (with whom Fraser JA and Williams J agreed) held that the Crown’s submission could not be accepted. The concession by the applicant’s counsel “has no bearing upon whether the sentence should be held to have been manifestly excessive”. [9], [11].

His Honour began by observing that the practice, customary in Queensland, for sentencing judges to receive submissions which suggested an appropriate outcome or range of outcomes had been discontinued following the High Court’s judgment in Barbaro v The Queen (2014) 253 CLR 58. [3], [4]. It was however (appropriately) resumed upon the enactment of s 15(1A) Penalties and Sentences Act 1992 which permits a sentencing court to receive a submission from the parties. [4], [7].

Critically though, that provision does “not affect in any respect the sentencing principles which the courts must apply”. Namely:

1. It is the duty of the sentencing judge to sentence according to the principles which are prescribed by the applicable statutory provisions and as developed by the judge made law. [7].
2. Sentencing submissions neither expand nor confine the judge’s discretionary power. [8].
3. Just as the exercise of the sentencing discretion cannot be qualified by sentencing submissions of this kind, a sentence which betrays some misapplication of principle does not cease to be so for the fact that the error has been contributed to by an errant submission to the judge. [8].

His Honour concluded by noting one further matter in obiter dicta which qualifies the effect of his observations above: “It is that a submission by a prosecutor as to the appropriate sentence might matter in an appeal by the Attorney-General, where different considerations apply and there is the so-called ‘residual-discretion’ involved”. [10].

Z Brereton of Counsel