On 14th June this year, the High Court heard a Crown appeal against an incest sentence, an appeal that turns in part on a practice of Victoria’s Court of Appeal. Since 2007, the Victorian Court has sought submissions and made rulings on the topic of ‘current sentencing practices’ in particular classes of case, simultaneously with but separate from resolving particular sentencing appeals. A year ago, the Court of Appeal ruled that sentencing practices for incest were too low, but also dismissed a Crown appeal about a particular incest sentence. In his written submissions on appeal, Victoria’s Chief Crown Prosecutor said:

It is not apparent that any other State or Territory in Australia struggles with the question of consistency of sentencing in quite the manner experienced in Victoria. It is respectfully submitted that the correct role to be played by “current sentencing practices” should be decided. From what appears above, it might be said that there is not a united position in the Victorian Court of Appeal on the issue.

In the High Court hearing, he used sharper language, describing the Victorian approach as ‘inimical’ and ‘not permissible’. One exchange went like this:

KEANE J: But as I understand it, it seems to be said against you that the Director somehow accepted that there was this limit on the appeal and that the result is essentially something for which the Director is responsible.

MR SILBERT: Your Honour, this has been going on for something like 10 years. The Director has no option, when requested to make these submissions, but to make them. When the court refers to an uplift the Director cannot simply say, “I refuse to be involved in this uplift.” If the Director is lodging an appeal on the basis of manifest inadequacy he has to go along with it or else he has no basis for appealing. So it is a procedure that is imposed by the court and has been for something like 10 years. It has actually never been used by the Director effectively, I do not think, to produce any result in any concrete case.

There are dicta that emanate from various cases where the court considers this uplift and says well, sentencing is inadequate, and they have said it here, but they do not determine the dispute in issue between the parties. There is obiter, as referred to by Justice Ashley in Ashdown, that emanates from these discussions but they are more philosophical discussions than disputes between the Crown and an accused. The Crown is not complicit in the exercise – it did not invent the exercise – and it is dragged kicking and screaming into each one of these contests. I do not know whether that answers your Honour’s question.

KEANE J: It just does seem odd.

On Wednesday, the High Court unanimously upheld the DPP’s appeal, drawing on its recent ruling in Kilic (on the relevance of the maximum sentence) and holding that the decision to uphold a sentence that was based on then current, but wrong, sentencing practices, was ‘an error of principle’. Indeed, the plurality concluded that it ‘might’ be that the Court of Appeal’s practice ‘is inconsistent with [Victoria’s] Sentencing Act’.

The publication of the judgment coincided with the release by News Ltd of letters between Victoria’s then Chief Justice and Victoria’s Director of Public Prosecutions. A week after the High Court hearing, Warren CJ wrote to DPP John Champion, complaining about Silbert’s remarks, in particular claiming that the DPP has long supported the Court of Appeal’s practice, and concluding:

It is of course essential that the High Court not be misled. Unless what I have set out above misdescribes the positions you have previously taken, I would be grateful for your advice as to what steps you intend to take to correct the submissions advanced by the Chief Crown Prosecutor.

A week later, after a further undisclosed exchange, Warren CJ again wrote to the DPP, querying his desire to consult first with Silbert in light of the urgency of the matter and noting that the ‘falsity [of the Chief Prosecutor’s statement] is demonstrable’. Three weeks later (after Silbert returned from leave), Champion wrote to the Chief Justice saying that, following consultation and advice, ‘I am unable to agree that the High Court has been misled in the ways suggested’, but offering to forward all correspondence to the High Court. The Chief Justice responded three days later that Champion’s response was ‘not sufficient’ and that forwarding the correspondence to the High Court would be ‘entirely inappropriate’, urging him to correct the record and observing that the Supreme Court would ‘consider the next step as to its position.’ The media reports that Victoria’s Bar Council later rejected an ethics complaint about Silbert’s submissions to the High Court.

The timing of the letters’ leak to the media was surely partly designed to avoid a perception of influencing the High Court’s decision. The Australian, for its part, saw an inconsistency in Warren CJ’s recent actions:

The High Court appeal was heard in Canberra on June 14 — the day the Victorian Supreme Court sent letters to three Turnbull government ministers and editorial staff of The Australian asking why they should not be charged with contempt of court…. The court said the comments by ministers Greg Hunt, Michael Sukkar and Alan Tudge had “failed to respect the doctrine of separation of powers” and “breached the principle of sub-judice” or tended to interfere in a case before the court….

A week later, Chief Justice Warren wrote to the DPP criticising its conduct of the High Court appeal, which was then still under consideration. On June 22, she wrote to Victorian DPP John Champion SC, who has an independent statutory role to conduct public prosecutions and appeals, and demanded he send further material to the judges after arguments had closed.

Although the two events clearly overlapped in timing and subject-matter (each involving both sentencing and criticisms of remarks on appeal), they differ in that the three Ministers’ emails were published by the Australian before the appeal in question was decided, while the High Court presumably remained blissfully unaware of Warren CJ’s letters to the DPP until yesterday. However, as Silbert noted in a letter to the DPP that was also published on Wednesday, the case may not end with the High Court’s decision:

The judgment in the High Court is reserved with a very real possibility of remitter. Yet in the latest correspondence sent in this matter, the appellant is berated for various submissions made in the appeal. Thus, given that a successful Crown appeal involves the negation of various discretionary considerations, careful attention will now have to be given to the final resolution of this matter upon any remitter.

Silbert’s prediction was correct. Yesterday, the High Court remitted the sentencing case to the Court of Appeal for fresh consideration of the DPP’s appeal. So, it is perhaps convenient that Warren CJ retired at the start of this month. Her successor, Anne Ferguson, was sworn in just as her predecessor’s letters were published.