Judge for yourself: A Guide to Sentencing in
Published by the Judicial Conference of
Contents
The crucial role of parliaments
The executive branch of government
Who decides how a sentence will be served?
Balancing the reasons for a sentence
Common criticisms of sentencing
The “soft on crime” perception
Apparent inconsistencies in sentencing
Imprisonment rates in Australia
Problems with mandatory sentencing
The “blunt instrument” approach
The human face of sentencing...
Links for more information on sentencing:
About this booklet
This booklet is published by
the Judicial Conference of Australia as a free resource to members of the
public who wish to gain a better understanding of the system of sentencing
offenders in
The JCA is the national representative body for Australian judicial officers. It has a membership of some 600 judges and magistrates, and is a non-profit organisation largely funded by its members.
A number of courts, government departments and other organisations in each state have very kindly provided photographs for use in this booklet. They are acknowledged in the captions below each image.
This publication was made possible by generous grants from the Victoria Law Foundation, the Sentencing Advisory Council of Victoria, the Judicial Commission of NSW, the Law Foundation of South Australia and the Law Society Public Purposes Trust of Western Australia.
The JCA is extremely grateful for the assistance provided by these organisations.
Public perception of crime
Reports and feature stories of crime and punishment are constantly in the news. Criminal law, law enforcement, criminal prosecutions and sentencing of offenders generate a great deal of public interest.
Television, newspapers and radio, thrive on reporting serious or emotive criminal cases, especially if well-known people are involved, whether as offender or victim, or even both.
Matters of crime and punishment fascinate the public because criminal behaviour is often raw, startling and - for many people in the community - extremely unsettling and disturbing.
Crime, and the way it is reported, can affect the psychological well- being of people and indeed influence their everyday lives.
The high level of interest may also partly reflect the community’s experience with the fictional treatment of crime and punishment through television, cinema, books and magazines. Australian television is saturated with “cops and robbers” shows – Australian, American, British and sometimes even European ones.
For many people these programmes are pure entertainment, but they may also affect people’s views about crime and punishment in the real world. Many people are surprised to discover that the Australian judicial system does not mirror the one they see on television and the movies. They have watched American legal dramas on television and understandably think our courts operate just like American ones. In fact, they are very different in many respects.
Sentencing seems to attract more interest than any other aspect of the criminal justice system. When a person has broken the law and has caused harm or distress to others, the community expects that the sentencing process will punish that person appropriately - that “something will be done”.
Stories involving court cases are constantly in the news. Image: JCA
News
reporting of sensational crime cases and “cops and robbers” shows on
television, particularly from overseas, can give an inaccurate impression of
the way the justice system really operates in
American courtroom drama. Image: JCA
Our brutal past
Today, sentencing laws are designed to be much more effective as well as humane. They allow courts to impose financial penalties or loss of freedom ranging from life imprisonment to having to complete unpaid community work several hours a week. They may also provide for offenders to be diverted to treatment or other programs designed to prevent them from re-offending.
The Chain Gang – early historical drawing of Australian
convicts. Image: Allport Library and
The facts behind sentencing
This
booklet attempts to provide answers to some of the many questions people
have about how sentencing occurs in
What factors does the court take into account? How much discretion does the judicial officer have?
To what extent is the discretion limited? Why is a particular penalty chosen? Why a non-custodial sentence rather than imprisonment? Why a minimum sentence of three years for a bashing rather than, say, ten years? Is the sentence going to be effective? How will we know?
These questions will be considered from the point of view of judges and magistrates who daily impose sentences in the courts. We try to explain in broad terms what courts do in the sentencing process and why they do it. We also respond to some common criticisms that are made about sentencing.
The sentencing process is at the very core of the criminal justice system. Every community needs to devote a good deal of time and energy to producing a justice system that is as logical, rational, sensible and effective as possible.
This task is not simple and it is never finished. That is because the nature and amount of crime changes over time, community attitudes shift and new approaches to the legal system are always being suggested. A constant process of monitoring and up-dating the system is necessary.
Changes in sentencing laws and procedures can sometimes be influenced by criticisms of courts from the public, lawyers, police or those working in corrections, as well as the media.
Some criticisms of the system are well-founded and persuasive, while others reflect a lack of understanding about what the system can achieve - or disagreements about what it should be trying to achieve.
The who’s who of sentencing
Before considering what a judicial officer does in sentencing, we first need to look at the full picture of how a person gets to be sentenced.
While
it may appear that judicial officers are solely responsible for sentencing,
much of what they do is guided by laws set
by governments. In
Parliaments:
- Create offences
- Specify maximum penalties
- Specify principles for the courts to apply
- Create the tools/sanctions available to the courts
Courts:
- Apply the law within the framework set by parliaments
- Set specific sentences for individual offenders
- Higher courts also specify principles for lower courts, as well as hear appeals against leniency or severity of sentences
- Have no control over an offender once sentence passed
Executive:
- Correctional authorities – run community corrections programs and the prisons
- Controls movements of offenders in prison
- Parole boards - supervise offenders while on parole
How everyone is involved
Sentencing reflects our sense of right and wrong and the kind or society we want to live in. Every adult Australian bears some responsibility for it.
We decide what law and order policies to vote for, and by letting politicians know our attitude we help shape the sentencing laws that governments pass.
The crucial role of parliaments
Parliaments at federal, state and territory levels:
- Decide what kind of behaviour will be treated as a criminal offence by passing new laws and changing old ones.
- Decide the nature and range of penalties that courts can use when sentencing offenders convicted of various offences.
- Decide what kinds of cases will be handled at different levels within the court system.
Parliaments usually limit themselves to specifying the maximum sentence that can be imposed for particular offences. The main purpose of a maximum penalty is to indicate the appropriate penalty for cases falling within the worst category of cases of that nature, for example in Victoria 25 years’ imprisonment is the maximum penalty that can be imposed for armed robbery - or 10 years’ imprisonment for theft.
For some offences, parliaments have created mandatory penalties. Examples are fixed fines for speeding offences and prescribed penalties for a driver who exceeds a certain blood alcohol level. The Commonwealth and Western Australian parliaments have set mandatory minimum prison terms for certain serious or repeat offences. (See below for a discussion on mandatory sentencing).
Parliaments also have a major role in creating and funding the infrastructure and services that are necessary to implement the various kinds of sentences available to the courts.
For example the prison system, probation arrangements, hospital orders, intensive supervision orders, drug treatment orders and home detention all require laws to be passed as well as substantial funding to implement the measures. Ultimately, it is the government (through parliament) that allocates funding for the operation of the entire criminal justice system – including the courts.
Australia
State and territory criminal cases are heard in their respective state and territory courts. Prosecutions for alleged breaches of federal criminal law are also heard in state and territory courts.
Therefore, if a crime is
committed in
Each state and territory has its own:
- Criminal laws and procedures
- Court systems
- Sentencing laws
- Prisons and community corrections systems.
There are close similarities in the laws and procedures of most states and territories, but penalty types and penalty ranges vary.
In this booklet we discuss the practices generally adopted by courts.
Which court is which?
The High Court of Australia is the ultimate court of appeal for the whole country. It guides state and territory courts in interpreting and applying sentencing principles. Larger states have three levels of courts:
- Supreme Courts – which hear the most serious cases such as murder and manslaughter.
- District or County Courts – which hear serious cases, such as rape, armed robbery and culpable driving.
- Magistrates or Local Courts – which hear the vast majority of prosecutions for less serious offences.
Smaller states and territories like
The High Court,
An independent judiciary
The judicial officers who perform the sentencing function in our courts are part of the judicial branch of government, which is separate from the legislative and executive branches.
The importance of separating the different branches of government in a modern democracy is that it provides a series of checks and balances for the protection of the community.
As a key part of this, the judicial system is independent of the legislative and executive branches of government, to ensure that criminal and civil cases are heard and decided independently, impartially and fairly.
Another crucial element of judicial independence is that judges and magistrates have security of tenure, which means that they can’t be “sacked” or removed from their position by the government.
In most courts, judicial officers are appointed until they are 70 years old, unless they decide to take earlier retirement.
While different arrangements operate for different levels of courts and jurisdictions, elaborate procedures exist to ensure that judges and magistrates can be removed from office only in very limited circumstances.
These procedures are deliberately intended to protect the community by preventing governments from getting rid of judicial officers for political reasons, or because they decide cases against the interests of the government of the day.
Judicial officers are independent, not only from government, but also from each other. This means that individual judges and magistrates are able to hear and decide cases entirely on their merits and free from any inappropriate interference - even from within their own court.
What makes a judicial officer?
Judicial officers are appointed by the Attorney-General of the Commonwealth, or of the state or territory concerned. Judicial officers not only must be actually unbiased, courts also see it as very important to be perceived as unbiased.
In sentencing offenders, Australian judicial officers are part of a strong tradition of professionalism, independence and impartiality. They must adhere to principles of fairness, justice and the rule of law.
The lawyers who are appointed to judicial office are knowledgeable about legal principles. They usually have extensive practical legal experience and are familiar with the workings of the courts.
Most have practised in the courts for many years as barristers or solicitors. They are, in other words, accomplished professionals.
Three judges of the SA Supreme Court. Image: SA Supreme Court
The executive branch of government
The executive branch – state and federal departments and statutory authorities created by governments and usually headed by senior public servants – has key roles to perform in the sentencing system.
Members of the executive branch of government advise the relevant minister (usually the Attorney-General) on sentencing policy. They also assist the government of the day by proposing amendments to the criminal law and to legislation governing sentencing.
In some states, the executive employs court administrators who facilitate the day to day operations of the courts. However, some courts are self-governing and engage their own staff.
While they perform important functions, the administrative staff of courts do not play any direct role in the sentencing process.
The main sentencing responsibility of the executive is to implement sentences imposed by the courts, such as:
-
A term of imprisonment
-
Community-based sanctions, for example, community work or drug treatment
-
Home detention
-
Probation
-
A fine.
State Government department offices. Photo: Ivan Herman
Offenders cleaning a park under a community sentence order. Image: Vic Dept of Justice
Who decides how a sentence will be served?
To know how
Under the Australian criminal justice system, judicial officers who impose a sentence have very little - if any - control over the way the sentence is actually implemented.
The executive branch determines, for instance, how many prisons there are, how they operate and what programmes and services they offer. It is these authorities, and not the courts, that decide whether offenders will be in a maximum, medium or low security prison.
Similarly, government departments in each state are responsible for the kind of work an offender must perform under a community sentence or the conditions they will experience during a prison sentence.
Judicial officers cannot "order" treatment in prison: they can only recommend it.
An offender removes graffiti under a community sentence order. Image: Vic Dept of Justice
Parole Boards
The Parole Board, whether Adult or Youth, decides on the release of prisoners at the expiration of their minimum or "non-parole" periods. Parole is a conditional release before the end of a sentence of imprisonment.
These boards are usually made up of serving or retired judges, victims' representatives, behavioural experts of various kinds and members of the general community.
It is the task of these boards to decide whether a prisoner is ready to be released into the community under supervision. Parole is a means by which part of a sentence can be served in the community.
The parole system allows the prisoner's suitability for freedom to be tested. Breach of parole conditions can result in the prisoner being required to serve the balance of his or her term in prison.
Construction of the new
Minimum security prisoners help refurbish the Rhino enclosure at the Western Plains Zoo in Dubbo. Image: courtesy of the NSW Department of Corrective Services
How does sentencing happen?
Laws govern the sentencing of offenders. Judicial officers cannot sim- ply choose a particular sentence because they think it is “a good idea” at the time.
They must operate within the sentencing limits set by legislation and the principles laid down by the superior courts. There are two main types of legislation that have to be considered.
The first is an Act of Parliament that contains guidelines about the sentences courts should impose. A list of the sentencing laws in each state is shown below. Generally such legislation contains things like:
- The purposes for which sentences can be imposed
- Factors a judge must take into account when sentencing
- The types of sentences (for example imprisonment or community orders) that can be imposed.
Sentencing legislation across Australia
An example of the guidelines set by sentencing laws that
judicial officers must operate within. The below shows a few of a long list
of principles set by just one sub-section of the
Queensland
Section 9 (2) In sentencing an offender, a court must have regard to principles that -
- a sentence of imprisonment should only be imposed as a last resort; and
- a sentence that allows the offender to stay in the community is preferable; and
- the maximum and any minimum penalty prescribed for the offence; and
- the nature of the offence and how serious the offence was, including any physical or emotional harm done to a victim; and
- the extent to which the offender is to blame for the offence; and
- any damage, injury or loss caused by the offender; and
- the offender's character, age and intellectual capacity; and
Laws that define the crime
The other type of legislation that controls how judicial officers sentence offenders are laws that define the specific offences of which the offender has been convicted.
Such laws are often contained in the Crimes Acts of various states, and they usually stipulate the available penalty options - including the maximum penalties - that judicial officers can impose.
Laws of this kind and the sentencing laws create boundaries within which a sentencing court must operate. But they still allow the judicial officer to exercise a discretion by imposing a penalty less than the maximum - if he or she believes it appropriately reflects the nature of the offence and the circumstances of the offender.
EXAMPLE: In the
One of the many books dealing with the complexities of Australian sentencing. Image: JCA
When does sentencing happen?
Sentencing comes at the end of a long and complex criminal justice process. In the majority of cases, the process may go a bit like this:
Firstly some apparently criminal behaviour is reported to the police. For the behaviour to be considered a crime, it must be defined as such in a statute or in "common law". The police then investigate the complaint, and decide whether to charge someone with the crime.
The prosecution agency (either the police or an independent prosecution authority) will then decide whether the case will proceed to court. Not all cases go to court - sometimes there is not enough evidence to support a prosecution.
If the case proceeds, there will be a court hearing to decide if the person is guilty or not guilty. This can happen in two ways:
- The person charged with the crime pleads "guilty". Therefore the court finds them guilty and proceeds to the sentencing process; or
- The person charged with the crime pleads "not guilty". There will then be a hearing, usually in front of a judge and jury (in a higher court) or a magistrate in a lower court.
The court will take into account all of the evidence presented by the defence and prosecution and decide whether the person's guilt has been established "beyond reasonable doubt". If so, the court proceeds to the sentencing of the offender.
Jury trials are rare events
In 2003-2004, 95.9 per cent of all prosecutions in the Australian criminal courts were initiated in the Magistrates Courts, 3.5 per cent in District or County courts and 0.6 per cent in Supreme Courts (AIC, Australian Crime: Facts and Figures 2005).
These figures exclude the millions of cases dealt with as infringement or penalty notices, such as minor traffic offences.
In the magistrates courts, 85 per cent were found guilty, and 4 per cent were acquitted. (The rest were disposed of in some other way.) Of those found guilty, about 80 per cent had pleaded guilty.
In the higher courts, 73 per cent pleaded guilty, 6 per cent were acquitted and 8 per cent were found guilty by a jury. Jury trials take place in only about 0.3 per cent of all criminal prosecutions.
A jury sitting in the South Australian Supreme Court. Image: Ben Searcy Photography
The sentencing hearing
During a sentencing hearing, much information is presented to the court to assist it in deciding the most appropriate sentence in the circumstances.
When there has been a trial, the judge or magistrate will have already heard evidence about the offence and, generally, evidence at the sentencing hearing will be about the offender’s background and circumstances.
The court may also receive evidence about the effect on the victim(s) at the sentencing hearing. When a person has pleaded guilty, the judicial officer is usually given a statement setting out the facts constituting the offence.
All of the issues that must be considered by the judicial officer are set out in the sentencing legislation of the Commonwealth, state or territory (depending on the particular offence).
Three main issues:
Put in very simple terms, there are three main issues that a judge or magistrate must consider. They are:
-
The purpose or purposes to be achieved by the sentence.
-
Any mitigating factors - generally these are matters that decrease the culpability of the offender and therefore usually have the effect of reducing the severity of the sentence.
-
Any aggravating factors – these are matters that increase the culpability of the offender, and therefore usually have the effect of increasing the severity of the sentence.
Supreme Court building, Darwin. Image: NT Dept of Justice
The purposes of sentencing
All
sentencing legislation in
-
Punishment – usually means imposing a sentence that inflicts some kind of pain or loss on the offender.
-
Rehabilitation – means imposing a sentence that will help to change the offender's behaviour into that of a responsible citizen.
-
Specific deterrence – means discouraging the particular offender from committing more crimes.
-
General deterrence – refers to the idea that potential offenders in the community will be discouraged from committing a particular crime when they see the penalty imposed for that kind of offence.
-
Denunciation – is a formal public expression that the behaviour is unacceptable to the community.
-
Community Protection – means both protecting the community from the offender and from crime generally.
-
Restorative justice – means promoting the restoration of relations between the community, the offender and the victim.
Balancing the reasons for a sentence
Often the purposes of sentencing overlap, and it is very rare for a sentence to be imposed for only one purpose.
For example, a prison sentence could be imposed for "specific" and "general" deterrence, as well as for rehabilitative purposes. The court might think that the convicted person should receive psychiatric treatment or be placed in a drug or alcohol management program while in prison.
Of course, a prison sentence might simply be imposed to punish the offender by depriving him or her of freedom for a period.
Different crimes
The purposes of sentencing may differ for different crimes, depending on their seriousness. For crimes like murder or armed robbery, the major purposes are likely to be punishment and general deterrence. For less serious crimes such as graffiti or malicious damage, the judicial officer might view rehabilitation as the major consideration when imposing the sentence.
Different offenders
If the offender is a young person, the judicial officer might see it as more desirable to attempt to rehabilitate the offender, rather than punish him or her. On the other hand, an older offender with a long list of prior convictions might be considered suitable for a punitive or community protection sentence.
Different purposes – similar result
A young offender might be sentenced to a juvenile detention centre by one judicial officer for deterrent purposes, while another might do the same in the hope of rehabilitating the offender.
Statue at the Supreme Court building,
District Court with jury -
What sentencing laws require
Sentencing legislation specifies the matters that courts must take into account when passing sentence. These include:
- The nature and circumstances of the offence. Offences vary greatly in the way they are committed. Some crimes are planned, others occur on the spur of the moment; some cause great harm to the victim, others very little; some are committed alone, others by gangs.
- The degree of criminality. The number of offences and their seriousness are relevant to the degree of criminality.
- The victim’s circumstances. Some victims may be young or very old, or more vulnerable to crime because they are physically or mentally incapacitated or for other reasons. Such factors may warrant a more severe sentence.
- Any injury, loss or damage. A judicial officer must weigh up the degree of loss or the extent of injury to the victim in order to determine how serious the particular is to be regarded.
- Any mitigating factors. These could include whether the offender has shown contrition for the offence; whether he or she has pleaded guilty; whether the offender has attempted any form of restitution; and the extent to which the offender has co-operated with law enforcement agencies investigating the particular offence or other offences.
- The offender’s personal circumstances. The character, previous behaviour (including any criminal record), cultural background, age, means and physical or mental condition of the offender are also likely to be considered.
An older offender with many prior convictions who has failed to respond to previous court orders will generally be treated more severely than a young first time offender who, if given a chance, might turn away from a criminal career.
- The offender’s family or dependants. The judicial officer may consider the effect that any sentence might have on the offender's family or dependants.
However only in cases of exceptional hardship does the court take into account the effect of imprisonment on an offender’s family.
Minimum security inmates doing forestry work. Image: NSWDC
Avoiding unnecessary punishment
As a general rule, a judicial officer should not impose a sentence that is more severe than is necessary to achieve the purpose for which the sentence is imposed.
If being ordered to do work in the community rather than being imprisoned can adequately punish an offender, then the judicial officer should require the offender to perform community service.
Court cells,
The sentencing options
Imprisonment
Imprisonment is the most
severe sentence available to the courts in
Most longer sentences of imprisonment will include a period of parole. Conditions of release on parole include supervision. Offenders can be returned to prison if they breach the conditions of their release.
Community based sanctions
These orders may require an offender to perform unpaid work in the community, attend educational or rehabilitative programs, be supervised by a correctional officer or undergo assessment or treatment.
Home detention
Home detention requires an offender to remain in his or her house for a certain period of time. The person may be allowed outside the house at times during the day or at times in the week, and may be subject to supervision and electronic monitoring. Home detention may also be a condition of bail, or a condition of release from prison on parole.
A fine
A fine can be imposed as an alternative or addition to a prison or community sentence. Judicial officers take into account the financial circumstances of an offender when imposing a fine. Courts are aware that a fine of $1,000 may be less punitive to a wealthy person than a fine of $100 would be to a person on a low income.
Furniture workshop, maximum security. Image: NSWDC
Putting it all together
The judicial officer's task is to determine the appropriate sentence after taking into account all the relevant circumstances.
The sentence may not fully satisfy anyone – the victim, the offender or the public – but that does not necessarily mean there is anything wrong with it. On the contrary, it may well indicate that the judicial officer has appropriately balanced all the competing considerations (see Purposes of sentencing).
Appeals
If the
offender or the prosecution thinks a judicial officer has made a mistake in
sentencing – for instance if they believe a sentence is too harsh or too
lenient – they can appeal to a higher court.
Sometimes sentencing appeals go all the way
to the High Court in
Usually, an appeal court cannot just substitute its own opinion on what is an appropriate sentence. It can only change the sentence if it believes the lower court has made a legal mistake in exercising its discretion.
Although many cases go through the courts each year, relatively few cases are appealed.
For
example, in
Image: Vic. Dept. of Justice
Newsworthiness
The fact that a criminal case is newsworthy does not mean that most people consider the sentence imposed on the offender to be inappropriate. But media interest in a trial often leads to the sentence receiving very close public scrutiny.
The media may be interested in a criminal case for many reasons. The alleged offender may be very well known, as with high profile business people involved in corporate failures or sporting identities who fall foul of the law.
The circumstances of the offence may be particularly horrifying or disturbing, as with gruesome murders, "gang" rapes or sexual abuse of children.
Sometimes ordinary things we do – like driving cars – produce tragic consequences that can attract widespread attention.
Left: Barrister John Doris is surrounded by media during
a high profile murder trial at
Common criticisms of sentencing
Criticisms are frequently made of particular sentences and of the sentencing process generally. Usually the critics argue that sentences are too lenient and that judicial officers are "out of touch" with community opinion.
The cases that attract this kind of criticism tend to involve particularly brutal conduct by the offender, particularly tragic consequences for innocent victims, or both.
Because the media concentrates on the more sensational cases, most people have very little information about the much more typical cases that are dealt with by the courts.
Of the more than 740,000 sentences imposed by Australian courts each year, the vast majority follow a standard pattern for the particular offence.
More than 95% of these cases are dealt with in the Magistrates or Local Courts. These decisions are usually unreported and uncontroversial and generate little or no public debate.
For
the most part, prosecutors, victims and offenders
accept the out- comes as reasonable and do
not appeal. Because these cases form the majority of sentencing
decisions in
Appeals against sentencing NSW 1996 - 2000
Defence appeals against sentence severity: 1,314
Appeals against inadequacy of sentence: 269
Victorian Chief Justice Marilyn Warren (pictured above)
said in a paper in April 2005: “Of the thousands of cases dealt with in
higher courts each year, most appeals against sentence complain that they
are too severe. .. Those cases are rarely reported in the media. It is not
surprising, therefore, that the public may gain a distorted impression of
sentencing practices in
The “soft on crime” perception
One of the by-products of media coverage of newsworthy court cases is an impression that judicial officers are "soft on crime".
Many victims of criminal offences take an objective view of the sentencing process and are satisfied with the outcome. However the views of satisfied crime victims are not usually considered to be newsworthy.
Victims who are not satisfied that a sentence reflects their suffering and pain are much more likely to be quoted – and their views are more newsworthy because they generate controversy and conflict.
In other words, the public hears about the few disappointed victims rather than many satisfied ones.
Police escort a prisoner charged with a violent crime
into the Mildura
Image created from news article posted on the
A case in point
Comparing the impression given by the newspaper story on the left with the reasons for the sentence given by Justice Bernard Bongiorno in the Supreme Court of Victoria is an interesting exercise.
The story concentrates on the outrage of a victim’s family over a “soft sentence”. However the reasons given by Justice Bongiorno when delivering the sentence provide a much deeper insight into the case.
The following are short extracts taken from the detailed reasons provided by Justice Bongiorno when handing down the sentence:
7. ...Ben swung around quickly such that you thought he was going to give you a “slight punch”. You reacted by punching Ben in the face on the left hand side. This punch proved to be fatal.
8. As a result of the punch Ben fell, landing heavily on the bitumen road and striking the back of his head. This impact fractured his skull. It was this event, caused by your punch, which caused Ben Francis’ death. It was then about 1.00 am on 4 September.
9. At the time you punched Ben Francis you and he were both extremely drunk. You had both been drinking whisky for some hours. Analysis of a blood sample taken from him at 2.20 am, after he had been admitted to hospital, showed a blood/alcohol concentration of 0.14 gram/100 ml. There can be little doubt that your blood/alcohol concentration, had it been measured, would have been at least as high.
10. Perhaps because of your intoxicated state, after Ben fell to the roadway at first you did not realise what had occurred. When you did appreciate the seriousness of the situation, you attempted to seek help. This resulted in the attendance of an ambulance and police but only after some confusion as to where you both were was allayed.
11. After treatment at the scene Ben
Francis was taken by ambulance to the
30. The Crown has properly conceded that, in this case, a sentence capable of suspension is within the range of sentencing options open.
This concession does not, of course, bind this court to impose any particular sentence. But it necessarily implies that the Crown regards a custodial sentence of three years imprisonment as being within the range of avail- able sentences in this case.
31. Unless there were very significant mitigating factors present in a manslaughter case a sentence of three years imprisonment would normally be regarded as very lenient, perhaps too lenient. However, I am constrained to agree with your counsel that this case is exceptional and that justice can be served by the imposition of a gaol sentence which is capable of being suspended.
32. The law requires a court to impose an immediate custodial sentence only if no other sentencing option can properly fulfil the objects for which the sentence is to be imposed.
This sentencing principle applies with particular force to young offenders with no prior criminal history and the probability of effective rehabilitation. You fall into this category of offender. The evidence is very strong that you will not offend again.
33. I propose to sentence you to three years imprisonment and to order further that you serve a minimum of two years before being eligible for parole. That sentence will be suspended for three years.
However, before making this sentencing order I must ensure that you understand that the imposition of a suspended sentence carries with it the virtual certainty that you will have to serve that sentence in prison if you commit a criminal offence within the period of suspension.
It is only in exceptional circumstances that a court could relieve you from serving the whole of that sentence, subject to its minimum term, should you commit another offence within three years.
Do you understand that?
Apparent inconsistencies in sentencing
A common criticism is that there are disparities in the sentences imposed by courts – that similar offences and offenders receive quite different penalties from different courts or different judicial officers.
The reality is that, even within the same category of offences, circum- stances can vary immensely - leading to different sentences being appropriate for individual circumstances.
One crime – different circumstances
Part of the problem is that the law places criminal behaviour into categories that are easy to recognise. Virtually everyone would agree that murder is a most serious offence.
But the circumstances involved in murder can be vastly different. For example, most people would regard a contract killer who kills another person for money as being very different from someone who kills to relieve suffering (euthanasia).
The sentences will rightly differ - even though both cases involve the one offence of murder.
One crime – different offenders
There may also be great differences between offenders who appear to commit precisely the same crime. For example two men may commit an armed robbery of a service station.
On the face of it, the offences are identical, suggesting that their sentences should also be identical or, at least, very similar. But the offenders may have very different backgrounds. One may be an older man with a long criminal record, including offences of violence.
The other may be much younger with no criminal record. The older man may have been the ringleader; the younger a follower.
The younger man may have confessed and assisted the police to apprehend the older offender. It is likely in this situation that the older man will receive a more severe penalty for the same crime.
These examples illustrate that what might seem to be judicial inconsistency can usually be explained by the very different circumstances of each offender.
The available evidence suggests that, despite the discretion built into the sentencing process, the courts do generally achieve consistency and balance in sentencing.
Supreme Court,
The dock - South Australian Supreme Court,
Imprisonment rates in Australia
Imprisonment rates vary widely
across
Rate per 100,000 of adult population in 2005
|
Imprisonment rate |
|
|
NSW |
187.6 |
|
VIC |
94.2 |
|
QLD |
176.7 |
|
SA |
123.2 |
|
WA |
229.3 |
|
TAS |
149.9 |
|
NT |
575.5 |
|
ACT |
110.4 |
|
National rate |
162.5 |
Specialist Courts
The purpose of specialist courts is to improve outcomes for those coming before the courts and for the community as a whole. People brought before these courts generally present with one or more underlying issues - such as social or cultural disadvantages, mental ill health, a disability or substance abuse.
Specialist courts are an example of judicial officers and policy makers responding to the special needs of people who have been identified as being marginalised and whose problems leading up to an offence being committed have been overlooked.
Specialist courts are also a response to the “revolving door” nature of crime and punishment - that is, they are seen as an attempt to address the issues that lead to anti-social behaviour.
Current thinking is that problem-solving rather than conventional sentencing may be a better approach in these types of cases.
Specialist courts are generally less formal and more flexible than traditional courts, and are designed to make the participants more comfortable - and hence more compliant and responsive to the court’s decisions.
This approach is more individual, personal, welfare and service focused - rather than following the traditional procedures of the criminal courts.
The types of courts that have been established include:
- Neighbourhood justice courts
- Drug courts
- Indigenous courts
Neighbourhood justice courts
The
Victorian Department of Justice will open
Called the Neighbourhood Justice Centre (NJC), it will work closely with the local community to reduce the impact and incidence of crime, and will provide on-site support services for victims, witnesses, defendants and local residents.
The NJC approach recognises that members of the local community are best placed to understand the impact and incidence of crime in their own community.
The NJC will work closely with residents, traders, police and support agencies to improve safety in the local community, and to address the underlying causes of offending.
It will aim to provide opportunity, education and support for victims, witnesses, defendants and residents; assist in preventing crime and to increase community involvement in the justice system.
Drug courts
A drug court is a court, or a division of a court, responsible for sentencing and supervising the treatment of offenders with drug or alcohol dependency who have committed an offence under the influence of drugs or alcohol or to support a drug or alcohol habit.
Drug
courts or drug court programs operate in all states and territories except
Indigenous courts
Indigenous courts aim to reduce perceptions of cultural alienation, and tailor sentences to the cultural needs or special circum- stances of Aboriginal offenders.
There
are two kinds of indigenous courts in
Such
courts currently operate in
In each case Aboriginal Elders assist magistrates in the sentencing process as community cultural advisers. This contributes to an informal atmosphere and enhances understanding by all participants as well as a greater commitment to outcomes.
Mandatory sentencing
Some people expect sentencing to be an automatic process, free of any exercise of discretion or judgment by the court.
It is not impossible to imagine a system in which judicial officers mechanically apply penalties set out in a statute, regardless of the facts of the case or the circumstances of the offender.
For
example, for a very long time in
If the ability to use discretion is removed, courts lose the flexibility which is the key to achieving justice. It was for that reason that even in the days of the mandatory death penalty, the government could commute the death sentence in what were thought to be deserving cases.
The difference between that system and the modern sentencing process is that the Government made the ultimate decision, rather than the courts.
Image: Vic. Dept. of Justice
Ronald
Ryan, the last per- son to receive the death penalty in
Widespread public protests against his execution led to the abandonment of
capital punishment in
Pentridge Prison. Image: JCA
Problems with mandatory sentencing
Critics of sentencing often claim that there is a need to limit judicial discretion – and the most common proposal is to introduce or extend mandatory sentencing.
Mandatory sentencing schemes fall into two broad categories. One is where the penalty is literally mandatory, in the sense that the court has absolutely no choice but to impose the specified penalties.
An
example is a law that demands a specific penalty for trafficking in more
than a prescribed quantity of an illicit drug. It was a law of this kind
that recently led to the execution of a 25 year-old Australian who was
arrested in
The second category is “mandatory minimum sentencing”. For example, a conviction for armed robbery might require the court to impose a minimum term of, say, 10 years’ imprisonment. This means that the court would have no choice but to impose at least the minimum term of imprisonment. This form of mandatory sentencing retains some element of judicial discretion, in the sense that judges can impose sentences above the minimum.
However such a system does not allow a judge to take into account the nature of the offence or the background of the offender, in order to impose a more lenient penalty than the minimum.
Thousands of candles were lit in an “Amnesty vigil” held in Mar tin Place, Sydney, in November 2005, as par t of a national vigil for Nguyen Tuong Van, who received a mandatory death sentence after being arrested with 14 ounces of heroin at Singapore’s Changi Airport. Photo: Ben Rushton - courtesy The Age
The “blunt instrument” approach
Professional studies of mandatory sentencing regimes have identified serious problems of injustice, which include:
- Offenders whose culpability is very different can receive the same sentence.
- Discretion in sentencing is not eliminated, but is transferred to other people in the system, such as police and prosecutors, who are far less publicly accountable than the courts.
-
The schemes are biased against the poor and the marginalised including,
in
- The regimes overlook the nuances of situation, responsibility and social harm that should properly determine the penalty for criminal conduct (the “blunt instrument” phenomenon).
- Mandatory sentencing is very expensive for the community and diverts resources away from more effective programs, such as better education, health and social services.
A cell in Katingal Prison NSW. Photo courtesy The Age
A vital independence
Governments are nearly always looking at sentencing policy to see what refinements or adjustments might be needed to ensure the system is effective and meets the needs of the community.
Politicians sometimes respond to sentencing issues as they arise, and try to persuade the community, especially at election times, that they have the right answers to the problems of crime and punishment.
This response usually involves claims that their particular political party will be tougher on crime than their political opponents, and that they will provide the community with higher levels of protection from crime.
In these political debates it is common for one side to accuse the other of operating policies and practices which are “soft on crime".
One of the great advantages of our legal system is that the courts remain free of political interference from any government or political party.
The courts can continue to make decisions about guilt or innocence, and to hand down appropriate sentences in accordance with the guidelines set out in legislation.
But it
is fundamental to
West Australian Supreme Court in Perth, built in 1903. Image: Supreme Court, WA
Sentencing advisory councils
There are some promising moves to improve mutual understanding about sentencing between the community and the justice system.
These include the
establishment in
The stated purpose of the Victorian Council, for example, is to bridge the gap between the community, the courts and governments in relation to sentencing – by informing, advising and educating.
The work of sentencing councils is the latest in a series of initiatives designed to make the sentencing process increasingly transparent and accessible to the community.
Sentencing Advisory Councils act as a link between the community on the one hand, and government and courts on the other. Members of the public are appointed to these bodies to reflect community views, as well as bring different kinds of expertise to the discussions.
How you can become involved
In our legal system the public is not directly involved in the sentencing process. There is scope, though, for interested members of the community to influence sentencing policy at the political level.
The most obvious way of doing this is for people to contact their local member of parliament or the responsible minister (usually an Attorney-General). In this way, people can make their views known about sentencing policy and practice.
Another avenue is to take advantage of the work of Parliamentary Law Reform Committees or Law Reform Commissions, which are quite often asked to look at various aspects of sentencing.
Members of the public can get involved in these kinds of inquiries by making submissions or attending the public hearings which are often part of the operational procedures of such bodies these days.
The human face of sentencing...
In the following pages, we ask selected judicial officers - who face decisions involving crime and punishment as part of their daily working lives - to give some information about their background and to express their thoughts on the difficult task of sentencing.
Judge Roger Dive, Senior Judge of the NSW Drug Court
“Before my appointment as a judge I worked in city, country and children’s courts as a magistrate for 15 years. In earlier years I had been involved in the administration of courts, and also law reform issues, such as developing new tenancy and credit laws.
My life experiences have highlighted how many in our community, especially children, have chaotic, even dreadful, lives before becoming involved in drugs and crime.
As the
Senior Judge of the
This is a new and effective way of protecting the public from crime. As the judge, my role is to lead that team effort, develop a positive supportive relationship with each participant, and impose prison sentences if participants are unable to rehabilitate with our help.”
Judge Julie Dick, Queensland District Court
“I have been a judge of the District Court of Queensland since 2000, and before that appointment I was Parliamentary Criminal Justice Commissioner for three years. At the bar, I practised largely in the criminal jurisdiction as both prosecutor and defence counsel.
Judges of my court sentence for a very large range of offences. In addition the facts and circumstances surrounding an offence are infinitely variable. The personal circumstances of the offender and, where applicable, the victim vary from case to case. Maximum penalties for offences differ widely.
Accordingly, the process of sentencing depends on a careful consideration of the law and the facts and a proper exercise of a judge’s discretion. In all cases, this calls for a balancing of the weight to be given to the various factors and for a conscientious effort by the sentencing judge. ”
George Zdenkowski, Magistrate, Local Courts of NSW
“I
practised as a solicitor and taught for many years in the Faculty of Law at
the
I served as a commissioner with the Australian Law Reform Commission, and was appointed a Magistrate of the Local Courts of NSW in 2000.
The role of sentencing requires a judicial officer to be independent, impartial and fair in the decision making process, to focus on the objective circumstances of the offence and the subjective circumstances of the offender within the framework of the law, and to communicate effectively with all the participants in the process so that the outcome is understood by all concerned, as well as by the community. ”
Justice Ann Vanstone, South Australian Supreme Court
“I began my career in private practice, then prosecuted for a number of years, becoming Associate Director of Public Prosecutions and taking silk.
I then spent five years at the independent Bar accepting a much wider range of briefs, and was appointed to the Supreme Court - as its youngest member - in 2003. Outside the law, I study art history and enjoy tennis, golf and Thai cooking.
I see my role in sentencing being to bring to bear an impartial and fair mind to establishing the facts of the crime and understanding its impact, and then imposing a penalty which is both consistent with principle and does justice to all those concerned in the crime. ”
Judge Margaret Rizkalla, County Court of Victoria
“I
graduated in law from
Sentencing is one of the most complex tasks a judge undertakes because it requires balancing a number of complex factors, both personal to the offender and particular to the offence, in order to provide a just and appropriate sentence, whilst at the same time providing justice to the offender. It isn’t a mathematical equation – in the final analysis it does require the individual Judge to make a subjective assessment of all the relevant factors and to determine how they will be applied in fixing a sentence. It is never easy. ”
Dr Kathryn Auty, Magistrate, Western Desert,
Goldfields and Esperance region,
Western Australia
Dr
Kathryn Auty has been a solicitor with the Victorian Aboriginal Legal
Service, a lecturer at
She
has written and co-edited books and articles on legal issues, and was a
Magistrate of the
“There have been many structural and procedural modifications in magistrates' courts, including diversion programs and the provision of bail advocacy, intellectual disability and psychological support workers. More recently, magistrates' courts have been employing Aboriginal Justice Workers to assist in Aboriginal Sentencing Courts.
In Aboriginal Community Courts (WA), Koori Courts (Vic), Nunga Courts (SA), Murri Courts (Qld) or Circle Sentencing Courts (NSW), senior Aboriginal people now assume the role of assisting magistrates as community and cultural advisers.
Sitting with magistrates, these senior community advisers provide advice about the accused and his or her family and background and cultural ties, counsel the accused about the impact of their offending and frequently condemn offending behaviour for breaching Aboriginal codes of acceptable conduct and for the impact the conduct has on victims.
The knowledge and authority of these senior Aboriginal people provides enormous assistance to magistrates. They help to gain an understanding about the roots and causes of offending behaviour and also provide Aboriginal people with a voice in the proceedings.
As a magistrate, I have found that this innovation has been the most satisfying and successful of any process in which I have been involved. It is challenging, stimulating and confronting, but it is also has a palpable impact on levels of alienation and anger amongst Aboriginal people exposed to court processes.
These courts do not provide a soft option. In the evaluations that have been conducted (and all of these courts are being evaluated) we have found that recidivism is reduced, levels of alienation from the court process are lessened and that defendants leave court with a greater understanding of the process and sentence and with a more serious commitment to completing sentencing orders. ”
Dr Kathryn Auty (centre foreground) at the
Acknowledgements:
The preparation of this booklet has involved a great deal of work by many people.
The
first draft of the text was skilfully prepared by Professor Peter Sallmann,
Honorary Professor, Faculty of Law,
Mr Iain Gillespie, Freelance Editor, selected the photographs included in this booklet, laid out the material and carried out additional editing work. Mr Gillespie contributed to the project in a most professional, thorough and diligent manner.
The project was overseen by a Steering Committee set up by the JCA. The Committee consisted of the following:
-
Justice Ronald Sackville: Chair, Federal Court of
-
Justice Virginia Bell: Supreme Court of
-
Justice Kevin Duggan: Supreme Court of
-
Justice Elizabeth Curtain: Supreme Court of
-
Magistrate George Zdenkowski: Local Courts of
-
Professor Arie Freiberg: Dean, Faculty of Law,
- Mr Ernest Schmatt, PSM: Chief Executive, Judicial Commission of NSW
- Professor Peter Sallmann
The project would not have been possible without the guidance provided by the Steering Committee. Particular mention should be made of the extensive contributions to the project by Professor Freiberg. Not only did he bring his great expertise in the area of sentencing to the project, but he went far beyond the call of duty in ensuring that it remained on track for successful completion.
Justice Sackville has steered this project from the outset. His energy and enthusiasm have been instrumental in bringing this booklet into being.
On behalf of the JCA, I express its deep appreciation to all those who have contributed to the project.
Bruce
Debelle, Chairman – Judicial Conference of
Links for more information on sentencing:
The NSW Sentencing Council: www.lawlink.nsw.gov.au/sentencingcouncil
The Australian Law Reform Commission: www.austlii.edu.au/au/other/alrc/publications/reports/103
The
Sentencing Advisory Council of
The Judicial Commission of NSW: www.judcom.nsw.gov.au
The
The
Judicial Conference of
Note: The JCA’s website offers a much more detailed version of the sentencing information in this booklet.
ISBN: Paperback 978-0-9581474-2-2, Online 978-0-9581474-3-9