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TEN YEARS OF PUBLIC SERVICE SENTENCING ADVISORY COUNCIL The Victorian Sentencing Advisory Council celebrates its 10th year of public service this year. In marking the anniversary, this article considers the roles and history of sentencing advisory bodies in Australia and overseas. By Arie Freiberg and Cynthia Marwood
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he role of a sentencing council, indeed any specialist advisory body, should be to “provide subject-matter expertise, research and planning capacity, institutional continuity and a long term perspective to complex public policy issues, while partially insulating controversial issues from short term swings in public opinion”.1 In establishing the Sentencing Advisory Council, the former Attorney-General Rob Hulls, also wanted to ensure that “properly ascertained and informed public opinion is taken into account in the criminal justice system on a permanent and formal basis”.2 The Council’s mission is to bridge the gap between the community, the courts and the government by informing, educating and advising on sentencing issues. This is an aspirational goal. Sentencing operates within a
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dynamic and politicised environment. The aphorism “change is constant” is particularly apt in sentencing. The Sentencing Act 1991 (Vic) and related legislation is amended constantly, making the sentencing task increasingly complex for all involved in the criminal justice system. There are rapid swings in public opinion on sentencing, often in response to tabloid media coverage of single events, and crime and punishment can be pivotal issues in election campaigns. In establishing a sentencing council, Victoria was following in the footsteps of other jurisdictions. The United States, both at the federal and state level, the United Kingdom and New South Wales had all established sentencing councils before Victoria. These councils were established for different purposes and in different political and legal contexts.
The US experience US sentencing commissions, of which there are now nearly 30, were established largely to provide more structure to judicial sentencing discretion rather than to incorporate the public into the sentencing policy process. The move towards more prescriptive, structured sentencing was influenced primarily by concerns about unwarranted sentencing disparity based on racial bias. Although more prescriptive sentencing tends in Australia to be regarded negatively, it was originally part of a progressive movement in the US to promote consistency in sentencing. Perhaps the most successful and longlived of the US commissions is the Minnesota Sentencing Guidelines Commission established by the Minnesota legislature in 1978. The legislation underpinning the Commission sought to increase “the uniformity of sentences, without producing any overall increase in sentence severity or prison populations”. 3 Its guidelines specify a sentence for most felony offences 4 based on a combination of offence seriousness and offender history. This is sometimes referred to as numerical or matrix sentencing. The guideline sentence is presumed to be correct, and judges may depart from the sentence only if they cite
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substantial and compelling reasons. One of the main reasons cited for the success of the Minnesota Commission in achieving its goals is that the legislature gave the Commission considerable power and insulated it from political interference.5 In contrast, the Federal United States Sentencing Commission has been heavily criticised for preparing guidelines that are too complex and severe, and for leaving insufficient room for judicial discretion.6 Despite the perceived success of the Minnesota Commission, numerical or matrix sentencing is widely criticised. Critics argue that such systems merely shift the sentencing discretion from judges to the prosecutorial process and that they replace the problem of unjust disparity (treating like cases unalike) with the problem of unjust parity (treating unlike cases alike). No jurisdiction outside the US uses matrix sentencing as a model.
The UK experience In 1999, England established the Sentencing Advisory Panel to provide fully researched and objective advice to the Court of Appeal to assist the Court in formulating or revising sentencing guidelines. The Court was not required to adopt the guidelines, and ILLUSTRATION JAMIE JONES
control over the guideline content remained with the judiciary. Over time, the role of the Panel evolved, and eventually it was replaced in 2010 with the Sentencing Council for England and Wales. Most members of the Council are members of the judiciary, and the courts must follow the guidelines of the Council unless it is in the interests of justice not to do so.7 If the focus in the US is on numerical matrices, England instead focused on narrative guidelines that have over time, through incremental change, become more binding.
New South Wales In 2002, New South Wales established the first sentencing council in Australia. It was created as part of a package of sentencing reforms responding to public disquiet over what were perceived to be inadequate sentences. A stated aim of the Council was to “provide an invaluable opportunity for the wider community to make a major contribution to the development of sentencing law and practice in New South Wales”.8 This community contribution was achieved to a degree through the diverse backgrounds of its membership. Its statutory functions are to advise and consult with the relevant
minister about offences suitable for standard non-parole periods (SNPPs) and their proposed length, to advise and consult in relation to matters suitable for guideline judgments, to monitor and report annually on sentencing trends and practices and, at the request of the minister, to prepare research papers and reports on sentencing matters and educate the public about sentencing matters.9 The Council does not have the power to undertake research on its own motion. The Council has 13 members with diverse backgrounds representing the judiciary, prosecution, defence, victims, corrections, academia and law enforcement bodies. Since 2003, it has published more than 30 reports on topics such as high-risk offenders, suspended sentences, SNPPs, good behaviour bonds and non-conviction orders, Aboriginal offenders and alcohol-related violence.
Victoria The Council was the product of a long political process partly concerned with sentencing discretion and the role of the courts and partly with political legitimacy and responsiveness to the community. Consultation undertaken as part of the 2002 Victorian Sentencing Review (Pathways to Justice)10 highlighted the L I J
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need for an ongoing mechanism for feedback and review of sentencing that could replace episodic and reactive reviews. At the time the Council was established, the Sentencing Act 1991 was also amended to give the Court of Appeal the power to issue a guideline judgment. This is a judgment containing guidelines that apply generally or to a particular class of offence, offender or sentence, covering matters such as the criteria to be applied and the weight to be given to different sentencing purposes. While one of the Council’s functions is to provide advice to the Court should it exercise its power to give a guideline judgment, it was only in late 2013 that the Council was requested to fulfil this statutory function in relation to the operation of the new community correction order. The development of guidelines is a major focus of sentencing councils in other jurisdictions, but there has been a general antipathy in Australian courts to this form of guidance. However, the Council has a range of other functions to fulfil. These functions include providing statistical information (including information on current sentencing practices), conducting
of senior sergeant or below. Members bring a diverse range of views and ensure robust debate on the Council’s work. The Council is supported in its work by a secretariat comprising staff with experience in law, criminology, statistics and data analysis, public education and publishing. Since 2004, the Council has produced more than 60 reports on various aspects of sentencing. Some of these reports have been prepared in response to references from the Attorney-General. Others are the result of Council-initiated projects at the suggestion of a Council member, the Council secretariat or stakeholders in the criminal justice system. In preparing these reports, the Council has, for the most part, been able to provide independent advice on what are often highly emotive and contentious issues. However, sometimes the terms of reference given to the Council are framed in ways that restrict its ability to be an independent voice on the merits of a proposal – placing the Council in an invidious position with many of the stakeholders it consults. Sometimes the Council’s reports have recommended change; sometimes they have recommended retention of
The Victorian jury sentencing study is surveying jurors in real trials to gauge public opinion about sentences and sentencing.
research and disseminating information, gauging public opinion, consulting broadly, and advising the Attorney-General on sentencing matters. The Council originally comprised 12 members. The qualifications of Council members are set out in the Sentencing Act and the Council has always included members with broad experience in community issues affecting courts – an academic expert, a person who is a member of a victim of crime support or advocacy group, highly experienced defence and prosecution lawyers and members with experience in the criminal justice system. The Council’s membership was expanded in 2011 to include a person who is involved in the management of a victim of crime support group or advocacy group and who is a victim of crime or a representative of victims of crime. While there has always been a member of Victoria Police on the Council, the amendments in 2011 required that one member must be actively engaged in criminal law enforcement duties and be of the rank 50
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the status quo. Successive governments have taken up many, but not all, of the Council’s recommendations.
Sentencing data Before the Council was established, sentencing data was not readily available. The Council has bridged this gap through the provision of higher courts sentencing data in its Sentencing Snapshots and Magistrates’ Court sentencing data in SACStat. These sentencing data have made it far easier for all participants in the criminal justice system and the wider community to have information about current sentencing practices. The data have also helped to inform and raise the standard of debate on sentencing issues and supported evidence-based reforms.
Educating the community The Council has an active community education program aimed at increasing understanding of the sentencing process and
lifting the standard of debate. The Council’s flagship online education resource Virtual You Be The Judge (see page 54) puts participants in the role of a judge or magistrate as a way to educate them about sentencing principles. Face-to-face education sessions are targeted to adult education and service groups, particularly community influencers and opinion leaders. The Secretariat and Council members take up many invitations to speak on sentencing issues, including on talkback radio, to ensure that the Council hears a broad range of views and is not just “preaching to the converted”.
Public opinion on sentencing Finally, within the limits of its resources, the Council gauges public opinion. Most recently, the Council has focused its efforts on supporting the Victorian Jury Sentencing Study and the Sex Offence Sentencing Survey. Both are three-year studies run by the University of Tasmania with the assistance of the Council and the Supreme and County Courts. The Victorian jury sentencing study is surveying jurors in real trials to gauge public opinion about sentences and sentencing. Basing these findings on jurors rather than members of the public allows the researchers to examine the views of individuals who, like the judge, are fully informed about the facts of the specific case before them. When asked whether sentences in general are too severe, just right or too lenient, between 70 per cent and 80 per cent of the general community believe sentences are too lenient.11 In contrast, a previous study of Tasmanian jurors found that more than half of those surveyed recommended a more lenient sentence than the trial judge imposed. When told of the final sentence, 90 per cent of the jurors said that the judge’s sentence was very or fairly appropriate.12 This approach to gauging public opinion demonstrates that the more information people have about an offender and their offending, the more likely they are to agree with the sentence imposed by the court. This harks back to the original vision for the Council – one of incorporating informed public opinion into the sentencing discourse rather than one informed solely by tabloid media.
Other jurisdictions A sentencing council was established in Queensland in 2010 along similar lines to those of New South Wales and Victoria but was abolished in 2012 by the Newman government just weeks after its election to office. A Tasmanian council was created in
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mid-2010 on a non-statutory basis. It currently has seven members and limited resources. A similar, non-statutory council with 18 members was established in South Australia in 2012 and works within the Attorney-General’s department. Its only project to date has been a review of the mental incompetence defence, an issue that is unconnected with sentencing. There have been calls for a council to be established in the Australian Capital Territory.
Where next? Sentencing councils have differing roles in different jurisdictions. Victoria’s Council has a specific remit to ensure that properly ascertained and informed public opinion is taken into account in formulating sentencing policy. The Council has embraced this challenge with vigour – through the diverse voices on the Council, its consultation, the content of some of its reports specifically looking at public opinion, the statistics and statistical analysis it provides on its website, its community education program and its support of other independent research
Victoria’s Council has a specific remit to ensure that properly ascertained and informed public opinion is taken into account in formulating sentencing policy.
on sentencing. The Council has gone some distance in achieving its mission. However, there is still much to do to ensure that sentencing policy and practice is evidence-based and understood and supported by the community. l ARIE FREIBERG AM is chair of the Sentencing Advisory Council and emeritus professor at Monash University Law School. He is an authority on sentencing issues and the criminal justice system, having undertaken extensive research on sentencing theory, policy and practice. Professor Freiberg was appointed chair of the Tasmanian Sentencing Advisory Council in 2013. CYNTHIA MARWOOD is chief executive officer of the Sentencing Advisory Council. 1. Richard Frase, “The Minnesota Sentencing Guidelines” in Arie Freiberg and Karen Gelb (eds), Penal Populism, Sentenc ing Councils and Sentencing Policy (2008) 83 at 99. 2. Victoria Legislative Assembly (2003) Debates 20
March, Book 2, 478. 3. Note 1 above, 83 at 89. 4. Felony of fences punishable with life in prison are excluded. Judges also retain full discretion when sentencing for misdemeanours and gross misdemeanours. 5. Note 1 above, 83 at 90. 6. Nancy Gertner, “The United States Sentencing Commission” in Arie Freiberg and Karen Gelb (eds), Penal Populism, Sentencing Councils and Sentencing Policy (2008) 103–111. 7. Coroners and Justice Act 2009 (UK), s125(1). 8. The Hon Bob Debus, MP, NSW Legislative Assembly (2002) Debates 23 October 5813. 9. Crimes (Sentencing Procedure) Act 1999 (NSW), s100J. 10. Arie Freiberg, Pathways to Justice: Sentencing Review 2002 (2002) 202. 11. Karen Gelb, “Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing”, Victorian Sentencing Advisory Council (2006). 12. Kate Warner et al, “Public judgement on sentencing: Final results from the Tasmanian Jury Sentencing Study”, Trends & Issues in crime and criminal justice, Australian Institute of Criminology (2011).
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