Practitioners in Far North Queensland enjoyed a triple treat last week for the first session of the Cairns Judiciary CPD Series 2023/2024.
Judges Tracy Fantin, Gregory Lynham and Joshua Treviño KC shared their insights and tips when they presented “Successful sentencing submissions: On your feet or on the page, what works best?” at the Cairns Courthouse on Wednesday.
The judges spoke on a range of topics related to sentencing submissions, including summarising criminal history, recent domestic violence amendments, delays in entering a plea, mandatory sentencing, pre-sentence custody and visa cancellation.
In introducing the session, Judge Treviño spoke of the importance of using sentencing submissions appropriately.
“Of course, the number one rule of any court-based advocacy, oral or written, is ‘know your judge’, and so the rules are different for each judge,” he said.
“Flexibility and discretion is key, so maybe there are some occasions where your case is won on the written submissions, and maybe there are occasions sometimes where there is benefit in keeping your oral submissions contained lest you persuade the court to take a contrary view (to the one) that the court’s already formed because of your brilliant written submissions.”
Judge Lynham echoed Judge Treviño’s call for the proper use of submissions.
“Certainly in the District Court, the judge will have read all the materials and will have a reasonably good idea of what the matter is about, and will have had a chance to read the comparative authorities that the parties are relying on, so the whole purpose of a written submission is not to, in effect, reinvent the wheel, and tell the judge, in chapter and verse, what the matter is all about – the judge is going to know that.
“So the whole purpose of the written submissions, which is going to be supplemented by the oral submissions, is to identify those critical parts of the matter that either end of the bar table are going to seek to rely upon, either to try to persuade the judge to impose a penalty at the higher end of the range or at the lower end of the range, whatever the case might be.”
Judge Fantin spoke about the proper use of psychological or psychiatric reports in sentencing submissions, referring to the Verdins principles.
“Think carefully about the purpose for which you are relying on the report,” she said.
“There is a tendency to simply tender psychological reports or psychiatric reports without giving proper consideration to what it is in the report you are relying on and the purpose you’re relying on it for.”
She said there needed to be evidence of the nature and extent of the impairment in the offender’s mental functioning.
“A bald statement that they have an impairment is of no assistance. There needs to be evidence about how the impairment affected or was likely to have affected the offender at the time of the offending,” she said.
“And sometimes – this is not always necessary but can be included – how the impairment is affecting the offender at the time of sentence or likely to affect them in the future.”
Judge Lynham said practitioners should decide whether a psychological or psychiatric report was really necessary.
“It has never ceased to amaze me the number of reports that are tendered on sentencing that are completely irrelevant to the sentence,” he said.
“Sometimes it’s to the client’s detriment. I have seen reports which have expressed views such as ‘the defendant is a high risk of re-offending’, which wasn’t going to be alleged by the Crown, but there it is in black and white.
“What are you supposed to do with that as a sentencing judge?”
Nor should such reports should not be used to list a defendant’s criminal history, Judge Lynham said
“I can tell you from a sentencing judge’s point of view it is a complete and utter waste of time to tender a report, as Judge Fantin has touched upon, simply because you want to elicit what the client’s antecedents are,” he said.
“That’s something that should be done properly in oral submissions, and not by simply, and quite lazily, quite frankly, in simply relying up on a report.
“I think reports are being relied up on far too often, unnecessarily. Reports have a very valuable part to play in the sentencing process but they must be relevant, first and foremost.”
The next sessions of the Cairns Judiciary CPD Series 2023/2024 will be held next year at the Cairns Courthouse: 7 February, “Lessons Learned: An evening with the Legal Services Commissioner”, with Commissioner Megan Mahon; and 13 March, “Courtroom Etiquette: All for one and one for all”, with Judge Morzone KC and a local magistrate. Each session is 5pm to 6pm, and followed by networking drinks sponsored by the Bar Association and Queensland Law Society. Each session is worth 1 CPD point. Email email@example.com to attend.