A Question of Balance:

A Study of Judicial Methodology, Perceptions

and Attitudes in Sentencing

Geraldine Mackenzie, LLB, LLM

PhD Candidate, Faculty of Law, University of New South Wales

Supervisor: Professor David Brown, Faculty of Law

Year of submission: 2001

UNIVERSITY OF NEW SOUTH WALES Thesis/Project Report Sheet

Surname or Family name: MackenzieFirst name: GeraldineAbbreviation for degree as given in the University calendar:School:Title:

Other name/s: IsabelPhDFaculty: Law

A Question of Balance: A Study of Judicial Methodology, Perceptions and Attitudes in Sentencing

Abstract 350 words maximum:

Sentencing offenders is one of the most difficult and challenging tasks undertaken by judges. Yet little is known about judicial decision- ‘ making in sentencing, the judges’ attitudes and perceptions of the process, and how they take various factors into consideration.

This thesis explores and critically analyses judicial decision-making in sentencing through an interview based study of judges in the Supreme ! and District Courts in the State of Queensland. The judges’ responses were analysed for common themes, and conclusions drawn on how j judges perceive various aspects of the process, including judicial discretion, aims and purposes and public opinion.

The study revealed that judges perceive the process of sentencing to be an adjudicative balancing of the relevant factors in every case, y including the legal principles and the interests of all the parties, including the offender, the victim and the community. The judges see ', themselves as being in the best position to make these decisions, and are generally not in favour of further regulation of sentencing J discretion. As this has the possible outcome of idiosyncrasy and a lack of consistency in sentencing decisions, the study concludes that further regulation (but not restriction) of judicial discretion is desirable, preferably undertaken by the courts and judges themselves. ! Consideration should also be given to further development of sentencing rationales, including judicial education as to their use.

By providing a valuable insight into judicial perceptions of sentencing, this study will enhance the understanding of that process by judicial officers themselves, and by the community. It is argued that such understanding can benefit the sentencing process by clarifying community expectations (thereby reducing potential confusion and resentment) and providing a context which is relevant to the assessment and , implementation of any future sentencing reform. I

Declaration relating to disposition of project report/thesis

I am fully aware of the policy of the University relating to the retention and use of higher degree project reports and theses, namely that the University retains the copies submitted for examination and is free to allow them to be consulted or borrowed. Subject to the provisions of the Copyright Act 1968, the University may issue a project report or thesis in whole or in part, in photostat or microfilm or other copying medium.

The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing to the Registrar. Requests for a longer period of restriction may be considered in exceptional circumstances if accompanied by a letter of support from the Supervisor or Head of School. Such requests must be submitted with the thesis/project report.

FOR OFFICE USE ONLY Date of completion of requirements for Award

CERTIFICATE OF ORIGINALITYI hereby declare that this submission is my own work and to the best o f my knowledge it contains no materials previously published or written by another person, nor material which to a substantial extent has been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis.

I also declare that the intellectual content of this thesis is the product o f my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.

(S igned). ‘7 'J r 'lM l

1

T a b l e o f C o n t e n t s

A b s tra c t.................................................................................................................... viii

A c k n o w le d g m e n ts .................................................................................................... ix

Chapter 1: Introduction

1. Introduction....................................................................................................................1

1.1 “Sentencing is a very troubled area” ............................. ............................................ 3

2. Chapter outline................................................................................................................ 7

3. Methodology and scope......................................................................................... .........9

4. Justification for a study of Queensland judges................................................................... 14

5. Theory and philosophy of sentencing: recent trends...........................................................17

5.1 Thirty years of sentencing reform............................ 17

5.2 The decline of rehabilitation...................................................................................18

5.3 Neo-retribudvism: just deserts................................................................................20

6. Judicial discretion...........................................................................................................25

7. Sentencing decision-making ........ 29

8. Conclusion......... ................................. 36

Chapter 2: From prison hulks to Penalties and Sentences: the

development of sentencing law in Queensland

1. A brave new world: Queensland’s origins as a penal colony..............................................38

1.1 Introduction..........................................................................................................38

1.2 The State of Queensland............ 41

1.3 From Terra Australia to Terra Nullius.......................... 43

1.4 Bound for Botany Bay................................... 49

1.5 Moreton Bay........................................................................................................ 57

1.6 Colonial crime and punishment..............................................................................60

1.7 A pattern repeated.................................................................................................64

1.8 Sir Samuel Griffith............................................................................................... 65

1.9 The Queensland Criminal Code.............................................................................68

1.10 A Code of punishment.........................................................................................70

2. Toward Reform............................................................................................................74

2.1 Australian Law Reform Commission Reference on Sentencing...............................79

2.2 Victorian Sentencing Committee............................................................................82

2.3 New South Wales................................................................................................ 85

2.4 Canada................................................................................................................88

3. Penalties and Sentences Act 1992 (Qld)............................................................................90

3.1 Introduction......................................................................................................... 90

3.2 The philosophy behind the Act......................................................................... 92

3.3 Structure..............................................................................................................96

3.4 Amendment to the Act............................ 100

4. Conclusion...................................................................................................................103

Chapter 3: Introduction to the judicial study and methodology

1. Introduction................................................................................................................. 105

1.1 Organisation of Queensland Courts......................................................................107

1.2 The Supreme Court............................................................................................. 108

1.3 The District Court......... ............. 110

2. Judicial participation....... .................................................................... ...................... I l l

2.1 Supreme Court Judges............................................... 113

2.2 District Court Judges.............................................. 113

2.3 Gender analysis.... ............................................. 114

2.4 Anonymity and confidentiality.............................................................................114

3. Research design............................................................................................................115

3.1 Qualitative research methodology........................................................................115

3.2 Research method (in-depth interviewing).... ......................................................... 117

3.2.1 Open or closed questions.................................................................................... 117

3.2.2 Interview process........ .................. .................................................................119

3.2.3 Questions............................... 121

4. Thematic analysis......................................................................................................... 123

4.1 Some cautions.................................................................................................... 124

5. Conclusions................................................................................................................. 125

ii

Chapter 4: Judges and the process of sentencing

iii

1. Introduction................................................................................................................. 127

2. Balancing on the tightrope............................................................................................ 128

3. Approaches to sentencing methodology......................................................................... 131

3.1 Introduction.......................................................................................................131

3.2 The art of sentencing............................................................................... 133

3.3 Sentencing as a science................. 136

3.4 Instinctive synthesis............................................................................................ 139

4. How difficult is the task?.............................................................................................. 145

5. Stress ..................... 148

6. The human face of judging........................................................................................... 150

7. Sentencing workload........... ........ 152

7.1 Adjournments................................................................................. 156

8. Sentencing procedure..................................................................... .............................157

8.1 Practicalities....................................................................................................... 157

8.2 Sentencing as a rational process........................................................................... 158

8.3 Ritual and solemnity........................................ 161

8.4 Pre-reading.......................................................... 162

8.5 Doing deals......... ......................... 164

8.6 Role of counsel........................................................... 166

8.7 Giving reasons............ 171

8.8 Communication with people before the courts...... ........ 176

8.9 Information and support...................................................................................... 178

8.10 Evaluation and feedback.................................................................................... 179

9. Role of the judge.......................................................................................................... 183

9.1 Maintaining objectivity.............. 185

9.2 Being proactive...................................................................................................186

9.3 Other roles......................................................................................................... 188

9.4 Perceptions of self as a judge................................................................................189

9.5 Specialisation and training................................................................................... 193

10. Conclusion................................................................................................................ 195

IV

Chapter 5: Judicial discretion in sentencing

1. Introduction..................................................................................................................198

1.1 Sentencing guidelines........... ............................................................................. 203

2. Consistency................................................................................................................. 206

2.1 Disparity.......................................................................................................... 209

2.2 The link between unstructured discretion and sentencing disparity........................ 210

2.3 Does unjustified disparity exist?..........................................................................213

3. The importance of judicial discretion.... ........................................................................215

4. Structuring discretion................................... ........ ..................................................... 220

4.1 Introduction........................................................................................................220

4.2 Guidelines j udgements........................................................................................220

4.3 Mandatory sentences.......................................................................................... 228

4.4 Sentencing grids............................... 233

4.4.1 Opinions on sentencing grids..... ........ 238

4.5 Serious violent offences......................................................................................241

5. The terminology of constraint...................................... ........ ............. ..........................243

5.1 Sentencing legislation as a constraint................ 244

5.2 Range-based sentencing......... ............................ 248

6. Appellate Review.................................... ........ .................................... ...................... 253

6.1 Introduction........................... 253

6.2 Perceptions on the role of the Court of Appeal.......................................................256

6.3 Criticisms of the Court of Appeal......................................................................... 258

6.4 Acting defensively.............................................................................................. 260

6.5 Consistency and appellate review......................................................................... 261

6.6 Appellate review: a balance................................................................................. 262

7. Sentencing options............ . 263

7.1 Range of sentencing options....... ............................ 264

7.2 Imprisonment..................................................................................................... 266

7.3 When prison is appropriate.................................................................................. 272

7.4 The problem with prison: a postscript...................................................................273

7.5 Community-based orders..................... 274

7.5.1 Probation and community service orders.............................................................. 276

7.5.2 Intensive correction orders............................. 277

7.6 Shaming.............................................................................................................278

V

7.7 Flexibility and creativity.....................................................................................280

8. Conclusion..................................................................................................................284

Chapter 6: Sentencing aims and purposes

1. Introduction................................................................................................................290

1.1 The “cafeteria system” ........................................................................................291

2. Sentencing purposes..................................................................................................... 294

2.1 Section 9(1) Penalties and Sentences Act............................................................. 294

2.2 Judicial ambivalence................. 296

3. The practical use of sentencing purposes................................................ ...................... 299

3.1 Introduction............................ ......................................................................... 299

3.2 Relationship and balance between different considerations.................. .................301

3.3 Do the judges specifically refer to the purposes?................................................... 304

4. Section 9(1 )(a).......................................................... ........ ............................ ............. 306

4.1 Just deserts......................................................................... 306

4.2 Retribution........................................................................................................310

4.2.1 Retribution as a sentencing purpose... ........ 312

4.2.2 Retributive pressure from the community........................................ 314

4.3 Section 9(l)(a) in practice.................................................. 316

5. Section 9(1 )(b) - rehabilitation......................................................................................317

5.1 Introduction.......... 317

5.2 Use of rehabilitation in sentencing....................................................................... 319

5.3 Rehabilitation and young people.............................................................. .....321

5.4 Rehabilitation and alcohol and drug offenders.......................................................323

5.5 Rehabilitation and sentencing options...................................................................325

5.6 Thinking ahead to the effect of the sentence..........................................................327

6. Section 9(1 )(c) - deterrence........ ..................................................................................329

6.1 Introduction............................. 329

6.2 Opinions on deterrence........................................... 332

6.2.1 Where deterrence is justified...............................................................................336

6.2.2 Where use of deterrence is not justified............................................................... 337

6.2.3 Deterrence and other purposes of sentencing........................................................338

6.3 General deterrence.............................................................................................. 339

6.3.1 Introduction................................................................. 339

6.3.2 Categories of offences........................................................................................340

6.3.3 Publicity........................................................................................................... 347

6.3.4 Prevalence.........................................................................................................350

6.3.5 General deterrence - other considerations............................................................ 357

6.4 Specific deterrence..............................................................................................359

6.5 Some conclusions on deterrence...........................................................................361

7. Section 9(l)(d) - denunciation..................................................................................... 362

7.1 Introduction........................................................................................................362

7.2 The meaning of denunciation.............................................................................. 363

7.3 Importance of denunciation................................................................................. 366

7.4 How is denunciation incorporated into the sentence?.............................................367

7.5 Denunciation and specific offences...................................................................... 368

8. Section 9(1 )(e) - protection................................. ........................................................ 369

8.1 Introduction....................................................................................................... 369

8.2 Protection in sentencing............ 372

9. Restorative justice........................................................................................................376

9.1 Introduction................... 376

9.2 Compensation and restitution............ 379

9.3 Giving victims a voice................. ......................................................................381

9.3.1 Victim impact statements...................................................................................381

9.3.2 Victim advocacy........................................................... 386

9.4 Catharsis ............................... 387

9.5 Is restorative justice the answer?................. 389

10. Conclusion............... 390

Chapter 7: On law and order, public opinion, community expectations and

the media

1. Introduction............................................................................................................. . 3 94

2. Law and order......................................................................... 395

2.1 The politics of law and order............................................................................... 395

2.2 Law and order, violence and fear..........................................................................399

2.3 Law and order campaigns....................................................................................401

3. Public opinion............................................................................................................. 403

3.1 Public perceptions of sentencing..........................................................................403

3.2 Should public opinion be taken into account in sentencing?................................ 408

3.3 How is public opinion determined?...................................................................... 411

vi

3.3.1 Relying on the judge’s own views....................................................................... 412

3.3.2 Informed public opinion.....................................................................................414

3.3.3 Can public opinion be determined via the media?................................................. 416

3.3.4 Following the court of Appeal.............................................................................418

3.4 Public opinion and appeals.................................................................................. 419

3.5 What impact is public opinion having on sentencing............................................. 420

4. The court, the sentence and the community................................................................... 423

4.1 The judge as representative of the community.......................................................425

4.2 Community values..............................................................................................426

4.3 Community expectations.....................................................................................427

5. Media ....................................................................................................................429

5.1 Introduction........................................................................................... 429

5.2 The role of the media in the sentencing process.....................................................432

5.2.1 The media as a conduit of information...... ........ 434

5.3 Criticisms of the role the media is playing............................................................ 437

5.3.1 Quality of reporting by the media........... ................................. ................ . 438

5.3.2 Media campaigns...............................................................................................442

5.4 The media and the courts.....................................................................................443

5.4.1 Being more proactive.............................. 446

6. The consequences: the courts under pressure..... ..................... 447

7. Conclusion.................. 449

Chapter 8: Conclusion

1. Back to the future............ 452

2. Aims and purposes.......................................................................................................454

3. Discretion and ownership.......................................................................... 459

4. The courts and the community.......................................................................................464

4.1 The courts and the media.....................................................................................465

5. A question of balance................... ...............................................................................469

6. A postscript: where to from here?................................................................................. 473

Appendix..................................................................................................................479

Bibliography........................................................................................................... 489

vii

Abstract

Sentencing offenders is one of the most difficult and challenging tasks undertaken by

judges. Yet little is known about judicial decision-making in sentencing, the judges’

attitudes and perceptions of the process, and how they take various factors into

consideration.

This thesis explores and critically analyses judicial decision-making in sentencing

through an interview based study of judges in the Supreme and District Courts in the

State of Queensland. The judges’ responses were analysed for common themes, and

conclusions drawn on how judges perceive various aspects of the process, including

judicial discretion, aims and purposes and public opinion.

The study revealed that judges perceive the process of sentencing to be an adjudicative

balancing of the relevant factors in every case, including the legal principles and the

interests of all the parties, including the offender, the victim and the community. The

judges see themselves as being in the best position to make these decisions, and are

generally not in favour of further regulation of sentencing discretion. As this has the

possible outcome of idiosyncrasy and a lack of consistency in sentencing decisions, the

study concludes that further regulation (but not restriction) of judicial discretion is

desirable, preferably undertaken by the courts and judges themselves. Consideration

should also be given to further development of sentencing rationales, including judicial

education as to their use.

By providing a valuable insight into judicial perceptions of sentencing, this study will

enhance the understanding of that process by judicial officers themselves, and by the

community. It is argued that such understanding can benefit the sentencing process by

clarifying community expectations (thereby reducing potential confusion and

resentment) and providing a context which is relevant to the assessment and

implementation of any future sentencing reform.

I X

Acknowledgments

My first thanks must go to the 31 judges of the Supreme and District Courts of

Queensland who participated in this project, were willing to fit interviews into their

busy schedules, and "bare their soul", as some put it. It is a credit to the justice system

in Queensland that the judges were prepared to be open to such scrutiny. My sincere

thanks also must go to the Chief Justice of Queensland, the Honourable Justice de

Jersey, and the Chief Judge of the District Courts at the time of the study in 1998, His

Honour Judge Shanahan (now retired). Without their co-operation, this study would not

have been possible. I would also like to specially thank the two judges who assisted

with advice during the planning stages of the judicial study, and to thank one of the

Supreme Court judges who generously offered to read chapter drafts and gave excellent

feedback.

Without competent and careful supervision, a project such as this would never

eventuate. I was privileged to have as my PhD supervisor Associate Professor George

Zdenkowski of the Faculty of Law University of New South Wales (as he was then).

One of the main reasons I chose UNSW was his presence in the Faculty of Law, and I

knew that his wide experience and reputation, both nationally and internationally, would

be of enormous benefit, and that I would learn so much from him; which it was and I

did. Unfortunately (for me but not for him), greener pastures beckoned in early 2000

when he left the university; however he generously offered to continue his involvement,

and although he could no longer remain as a supervisor, he continued to read chapters

and offer comments throughout the closing stages of the project in 2000 and early 2001.

Even though the detail and careful analysis he asked of me was difficult at first, I never

lost faith in his ability to lead me in the right direction, nor doubted that it was the right

way to go. He is a gifted and inspirational teacher who as a supervisor was always

willing to impart advice, no matter how busy he was. He has a photographic memory

for detail and is an exceptional critic and editor. Even though these talents are now lost

to academia, he has left a body of work as one of the leaders of sentencing reform in the

1980s, an exceptional decade for sentencing reform.

X

I was equally privileged to have my supervision taken over by Professor David Brown

at the University of New South Wales from April 2000. Even though the timing was

difficult for him, he has somehow found the time to read chapter drafts and has

provided detailed and thoughtful comments to bring the project to a close. Although on

the face of it I appeared to lose a supervisor, in fact I gained two, with the only

difference being that most of the feedback was written rather than verbal. Although this

was difficult because I was studying externally, it also forced me to express my

thoughts in writing and therefore became a positive factor toward completion.

Also at the Faculty of Law at the University of New South Wales, I would like to thank

Kerrie Daley and Professor David Dixon for their excellent assistance with postgraduate

issues (particularly considering the difficulties of studying externally).

I am also very grateful for the input at the beginning of the project from Dr Simon

Petrie, who was then Associate Professor and Head of the School of Justice Studies at

Queensland University of Technology. Simon was an associate supervisor in the

beginning half of the project, and as a sociologist and criminologist, provided

invaluable assistance on the judicial study and other methodological issues. He was

also able to provide helpful "on-site" feedback, and I regularly met with him to discuss

the project. His assistance with early planning, ethical approval and the conduct and

write up of the judicial study was most appreciated.

My sincere thanks must go to my colleagues in the criminal law teaching team at the

Faculty of Law at QUT. Their forbearance during periods of leave and my general

preoccupation with the project was much appreciated. I owe a particular debt to Eola

Barnett who read chapter drafts and gave excellent feedback.

In addition, I have to thank the Dean of Law at QUT, Professor Malcolm Cope, for his

support and encouragement during the project, and also the former Head of School

Associate Professor Phillip Tahmindjis. The Faculty of Law and QUT have been

generous in their support of my PhD research. Also at QUT, I have to thank the

excellent staff at the Law Library, but in particular Norma Schwarz for her exceptional

assistance.

X I

I am particularly appreciative of the support and encouragement given by my colleagues

in the thesis support group at QUT. Such a support group is invaluable and necessary to

get through the inevitable lows of the thesis writing process. In particular I wish to

thank my friend and colleague Poh-Ling Tan for her constant encouragement; and at

particular times in the project, Dr Helen Stacey, Dr Haig Patapan and Dr Des Butler

(Assistant Dean, Research) have provided expert assistance. I would also like to

express sincere thanks to Dr Barbara Hocking and Geoff Dean from the School of

Justice Studies at QUT for reading chapter drafts and giving expert advice. I would like

to thank Geoff in particular for his assistance with methodology issues.

I also have to thank His Honour Judge Robertson, President of the Children’s Court of

Queensland, with whom I was fortunate to work on the original release of the

Queensland Sentencing Manual, for his support and encouragement over the years, and

his expertise in sentencing matters.

A large project such as this, particularly when undertaken externally, largely part-time

and with family responsibilities, must come at a price. My husband Keith, despite his

own busy professional career, never once complained about taking over many of my

household responsibilities and has gone above and beyond what anyone could ask,

providing constant support and encouragement throughout the ups and downs of the

process. This is for him too. My children Catherine, 13 and Andrew, 9 have had to

largely entertain themselves in the absence of their mother on weekends over a very

long period of time. Their hard work and resourcefulness has been an inspiration to me,

and I hope that this experience in turn has encouraged them to always strive to do their

very best and to grasp every opportunity. I am deeply indebted to them for exhibiting

such maturity at a young age, and am grateful for their love and support.

For my father, who didn't make it to see the end of the project, and my mother who

started me off on all of this by encouraging me to work hard and never give up. I have

never forgotten the lessons she taught me so long ago. I hope she would have been

pleased to see where her third year undergraduate law student daughter ended up.

Chapter 1 Introduction

i

1 In tro d u c t io n

This is a study of judicial methodology in, and judicial perceptions and attitudes toward

the sentencing process, seen through the eyes of judges. The research explores and

critically analyses approaches taken by judges in sentencing decisions by examining

interviews from a study of 31 judges of the Queensland District and Supreme Courts in

late 1998. This study elicits the judges’ views on the nature of the sentencing process;

how judges come to their decisions in sentencing offenders; judicial discretion; the aims

and purposes of sentencing; and public opinion, community expectations and the

involvement of the media in sentencing. By examining the judges’ perceptions and

attitudes toward sentencing, conclusions are then drawn about judicial participation in,

and the nature of the sentencing process itself.

Judges are infrequent direct contributors to the scholarly debate on sentencing. No

doubt they feel compelled to circumspection, and are in fact constrained from entering

the public debate by conventions of judicial independence.1 However such relative

silence clouds the transparency of the process of sentencing; an undesirable outcome in

sentencing systems retaining discretion, where the judge has a central and pivotal role to

play in the process. Sentencing involves some of the most important decisions made in

society, yet even judges themselves have noted how little is written about the “moment

of judicial decision” generally.2

The importance of judicial opinions was highlighted by one of the twentieth century’s

most influential jurists, H L A Hart:

Ibid 4.Justice Michael Kirby, “Judging: Reflections on the Moment of Decision” (1999) 18 AustralianBar Review 4, 15.

2

No one expects judges or statesmen occupied in the business of sending people

to the gallows or prison, or in making (or unmaking) laws which enable this to

be done, to have much time for philosophical discussion of the principles which

make it morally tolerable to do these things. A judicial bench is not and should

not be a professorial chair. Yet what is said in public debates about punishment

by those specially concerned with it as judges or legislators is important. Few

are likely to be more circumspect, and if what they say seems, as it often does,

unclear, one-sided and easily refutable by pointing to some aspect of things

which they have overlooked, it is likely that in our inherited ways of talking or

thinking about punishment there is some persistent drive towards an over­

simplification of multiple issues which require separate consideration.3

Hart’ s statement is emphatic that the judicial voice is important and relevant in the

public discussion about punishment, yet research into judicial attitudes and perceptions

of sentencing is rarely undertaken. The reasons for this are numerous, and include the

difficulty of access, and perceived or actual reluctance on the part of the potential

judicial subjects to reflect on their perceptions and experience, let alone participate in

the debate.4

What judges think about sentencing and how they approach this task can be described as

a largely missing link in sentencing research. As there have been few attempts

worldwide to discern judicial methodology by interviewing judges,5 discussion of these

issues is often limited to judicial pronouncements in their published decisions in

criminal matters before the courts, and extra-judicial statements such as the occasional

press interview, speech or conference paper. These statements are rare, often limited to

senior judges, and are not necessarily representative of the range of views within the

judiciary.

H L A Hart, Punishment and Responsibility: Essays in the Philosophy of Law, Clarendon Press, Oxford, 1968, 3.See also Andrew Ashworth, “Reflections on the Role of the Sentencing Scholar” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995, 263-264; discussed in more detail later in this chapter.See discussion of relevant studies later in this chapter at part 7.

3

1.1 “Sentencing is a very troubled area”6

Sentencing has a central position in the administration of criminal justice, and plays an

important role in maintaining good order in society by assisting to maintain the social

contract and the rule of law.8 As Sir Gerard Brennan, former Chief Justice of the High

Court of Australia points out, if the offender goes unpunished, there is a fear that the

victim will take the law into his or her own hands.9 Sentencing however is only part of

the process of keeping peace and good order, according to Andrew Ashworth:

It should not be, and cannot be, a primary instrument of social reform.

Sentencing is a public quantification of the individual offender’s

blameworthiness, determined according to acceptable standards of

proportionality.10

The limited role for sentencing in the criminal justice process was also borne out by

Lord Taylor, the former Lord Chief Justice of England, when he stated: “ [B]ut it must

be remembered that the courts alone cannot make people good or more responsible to

one another.” 11

Sentencing cannot control crime,12 in fact, according to Ashworth, crime prevention13

and public protection should not be and cannot be aims of the sentencing system, except

Interview Judge R with author, present study (1998): “Sentencing is a very troubled area: you have only got to read the various commentaries in the media to see the discrepancies between what goes on in court and what is perceived to happen.” This is discussed further in chapter 7 at 5.3.2.John Hogarth, Sentencing as a Human Process, University of Toronto Press, Toronto, 1971, 3.Rob White and Fiona Haines, Crime and Criminology: An Introduction, 2nd ed, Oxford University Press, Melbourne, 2000, 26-27.Sir Gerard Brennan, “Why be a Judge?” (1996) 14 Australian Bar Review 89, 90.Andrew Ashworth, “Criminal Justice and Deserved Sentences” [1989] Criminal Law Review 340, 354.Lord Taylor, “Judges and Sentencing” (1993) 38 Journal of the Law Society of Scotland 129.Ashworth, “Reflections on the Role of the Sentencing Scholar”, above n 4, 264. See also Hon Murray Gleeson, “Who Do Judges Think They Are?” (1998) 22 Criminal Law Journal 10, 15.For a detailed discussion of recent crime prevention strategies in Australia, see essays in Pat O’Malley and Adam Sutton (eds), Crime Prevention in Australia: Issues in Policy and Research, The Federation Press, Sydney, 1997. As to crime prevention generally, see essays in Michael Tonry and David Farrington (eds), Building a Safer Society: Strategic Approaches to Crime

4

that the existence of judicial sentencing “serves as an underlying general deterrent” .14

The Australian Law Reform Commission’s 1988 report, Sentencing (ALRC 44),

asserted that it was the criminal justice system, taken as a whole, which deters crime,

and that it was inaccurate to speak of sentencing, or any other component of the system

standing alone as deterring crime.15 In a similar vein, the distinction was made by the

Australian Law Reform Commission between sentencing and the administration of

punishment, by the following definition of sentencing:

Sentencing is the process of selecting the type and amount of punishment to

impose for a particular breach of the law. It is the function of the courts. The

actual administration of the punishment however, is the responsibility of the

corrections services, prison administrations and other agencies.16

The Victorian Sentencing Committee, which reported in 1988, also defined sentencing

in similar terms:

Sentencing is the process by which people who offend against the criminal law

have sanctions imposed upon them in accordance with that law. Many of these

sanctions involve punishment, others involve the exercise of mercy and yet

others represent means by which a person’s conduct or attitudes may be altered

so they do not offend in the future.17

The Victorian Sentencing Committee expressly agreed with the definition adopted in

the Canadian Sentencing Committee Report wherein it was stated:

Prevention (special issue of Crime and Justice: A Review of Research), vol 19, The University of Chicago Press, Chicago, 1995.Ashworth, “Criminal Justice and Deserved Sentences”, above n 10, 354-355. See also T Mathiesen, “General Prevention as Communication” in R A Duff and David Garland (eds), A Reader on Punishment, Oxford University Press, Oxford, 1994.Australian Law Reform Commission, Sentencing: Report No 44, Australian Government Publishing Service (ALRC 44), Canberra, 1988, 13.Ibid 12. See Mirko Bagaric, “Sentencing: The Road to Nowhere” (1999) 21 Sydney Law Review 597, 4.Victorian Sentencing Committee, Sentencing: Report of the Victorian Sentencing Committee, Attorney-General’s Department, Victoria, Melbourne, 1988, 15.

5

The Commission defines sentencing as the judicial determination of a legal

sanction to be imposed on a person found guilty of an offence. That definition

implies that sentencing is a different concept from punishment, though

obviously most sentences do involve some degree of punishment and coercion.

A sentence, however, is something that must be carried out, and therefore, there

must be a reasonable level of accountability in the administration of sentences.18Sentences should be what they are said to be.

If sentencing is an important mechanism through which society seeks to achieve its

social goals,19 * a major difficulty arises in that there have been conflicting opinions on

what these goals should be. The main burden of reconciling the competing goals of

the criminal justice system (in relation to sentencing) falls on the sentencer.21 * This is

particularly so where the common law or sentencing legislation, as the case may be, has

left to the sentencer the decision of which of a list of disparate sentencing goals should

be applied in a particular case. “ The difficulty of sentencing is further compounded if

the emphasis shifts from punishment to control,23 which is the case where an emphasis

is placed on sentencing purposes such as rehabilitation or deterrence.

Sentencing is a crucial part of the criminal process, yet one of the least generally

understood, beyond a superficial coverage by the media of sensational cases. It is often

the most visible aspect of a criminal proceeding, attracting media attention and public

comment when contentious, or perceived to be so. Perhaps because of its public

visibility, sentencing is often subject to political scrutiny, and can be the target of

“reform” agendas, particularly when “ law and order” and “getting tough on crime” are

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987, summary of recommendations.Hogarth, above n 7, 3.Ibid.Ibid 4.This is the case in Queensland under s 9(1) Penalties and Sentences Act 1992 (Qld), discussed in detail in chapter 6.Hogarth, above n 7, 4

6

at the top of the political agenda.24 Increasing the penalties for offences and putting

additional pressure on the judiciary to increase sentencing tariffs are often seen as

methods of demonstrating political “toughness” and a willingness to crack down on

crime.25 In short, a sticking plaster approach to the problem (or perception) of

increasing crime rates.

In justice systems where wide judicial discretion in sentencing is largely preserved, the

judge holds a central and significant role. This thesis contends that the opinions of

judges26 are important and necessary in order to gain valuable insights into the

sentencing process. The research also explores a number of questions regarding how

judges see the process and how they approach the task; the place and importance of

judicial discretion; what role the purposes of sentencing play and how they are applied;

what influence public opinion has, and should have, in sentencing; and what role the

media has, or should have.

Within these broad issues, smaller questions can be posed; for example, do judges see

sentencing as an art, a process of instinctive synthesis, or as an act of balancing? Do

judges defend judicial discretion as necessary in sentencing, or is there support for more

restrictive sentencing systems such as mandatory minimum sentencing, or United States

style determinate sentencing guidelines? Do judges perceive public opinion as being

irrelevant to the process of sentence, unless perhaps it is “ informed” ? Do they think the

media is performing a useful service, or is it an irritant? Do judges defend retribution

and deterrence as necessary sentencing aims as their judgments sometimes suggest?

These questions and many others are discussed in this thesis, and are critical to an

understanding of the process of sentencing. * 117

Russell Hogg and David Brown, Rethinking Law and Order, Pluto Press, Annandale, 1998, 116-117, and see discussion in chapter 7. See also discussion on the notion of “reform” in chapter 2 at part 2.Ibid.This study examines higher courts only, and therefore uses the term “judge” throughout to describe judicial officers. The bounds of the study are described in detail in chapter 3, nonetheless much of the discussion is equally relevant to the lower courts.

7

One of the key issues to be examined is judicial perceptions of the importance of

judicial discretion and defensiveness toward its regulation. This issue is a critical one at

a time when law and order imperatives are creating tension between unstructured97discretion and public perceptions of the process.

2 C h a p te r o u tlin e

Chapter 1 introduces the concepts and issues to be examined throughout the thesis,

including an introduction to the judicial study which is the basis of this research. This

chapter demonstrates the need for research to be undertaken in the area of judicial

methodology and judicial perceptions of the process of sentencing, by briefly examining

previous studies which have attempted an analysis of these or similar issues. This

chapter also establishes the context of the research, by noting international trends in

theories of punishment as well as sentencing practices, particularly the increasing

regulation and restriction of judicial discretion.

Chapter 2 discusses the social, historical and legal background to sentencing in

Queensland and the sentencing climate in the jurisdiction. The Queensland judges in

the study reflect the legal framework within which they operate, and the social and

political climate and jurisdictional heritage under which they pass sentence. This

chapter maintains that an awareness of the legal and socio-political history of

Queensland is necessary to further understand how and why judges pass sentence as

they do in that State. The chapter then describes sentencing reform in Australia over the

past 30 years, leading to the enactment of the Penalties and Sentences Act 1992 (Qld).

Relevant reform measures in other jurisdictions are discussed where they have

contributed in some way to sentencing reform in Queensland, or to the current debate on

sentencing. The Queensland legislation has introduced substantial change, both to the

philosophy and principles of sentencing and to the practice itself, and the nature of this

change is discussed. As later chapters will show, the judiciary generally has been quite

resistant to change, with some judges decrying the need for such specific legislation,

perhaps fearing a curtailment of their discretion.

27 This tension is explored in detail in chapter 7.

Chapter 3 describes the judicial study, including methodology, research design, the

manner of judicial participation, the interview process, and describes the method used to

analyse the data obtained.

The following chapters describe and analyse the findings of the study, largely in the

judges’ own words, and analyse those findings in the context of the relevant literature.

Chapter 4 analyses the study’s findings on the process of sentencing itself. Judicial

views are examined on the nature of the sentencing process; in particular whether

sentencing is an art or a process of instinctive synthesis, the difficulty of the sentencing

task and the role of the judge in that process. The chapter concludes with a brief

examination of the need for judicial education and training.

Chapter 5 analyses judicial discretion in sentencing, and the importance which judges

attribute to this critical element of the process. It includes discussion on structuring or

restricting discretion by various means, such as mandatory sentencing, judicial

guidelines and other forms of regulation, including sentencing commissions and

guidelines of the kind adopted in the United States. Sentencing options were discussed

by a number of judges during the course of the interviews, and there is an analysis of

judicial views on both custodial and community based sentencing options at the end of

the chapter. Conclusions are then drawn on the role of judicial discretion and whether

there are legitimate reasons for structuring this discretion.

Chapter 6 discusses the aims and purposes of sentencing, both in the context of the

common law history and meaning of these purposes, and s 9(1) of the Penalties and

Sentences Act 1992 (Qld). The latter prescribes the purposes for which sentences may

be imposed in Queensland, and includes the commonly cited justifications for

punishment. Despite discussion of restorative justice gaining legitimacy in the

sentencing discourse, it is not always included as one of the primary purposes for

sentencing, and is not included as one of the purposes in s 9(1) of the Queensland Act.

Many of the judges in the study however put forward views on this aspect of sentencing.

9

There is, therefore, at the end of this chapter, a discussion on restorative justice, and its

place in the sentencing process.

Chapter 7 examines judicial views on public opinion, law and order and the media;

exploring the tension between the act of judging and the public’ s desire for justice, or

perceived justice. Also discussed in this chapter is the role of the media in publicising

and facilitating the dissemination of public opinion.

Chapter 8 then draws conclusions about the sentencing process from the analysis of the

judicial study, examining and drawing conclusions from the major themes which

emerge.

3 M e th o d o lo g y an d s c o p e

At the core of this thesis is an examination of judicial perceptions and attitudes to the

sentencing process. It employs empirical research comprising interviews conducted by

the researcher with 31 judges of the District and Supreme Courts of Queensland in

November and December 1998. The judges were interviewed on an anonymous and29strictly confidential basis, and are identified within the work by random letter only.

The methodology for the study is described in detail in chapter 3, however the following

gives a brief overview of the scope and research design.

The judicial study was conducted using a small number of open-ended questions,

designed to draw out the interview subjects. The judges were questioned about how

they saw the sentencing function and their role in the process, judicial discretion, the

aims and purposes of sentencing, and public opinion and the media. The judges were

also given the opportunity to discuss other issues relevant to the sentencing process as

they saw fit. The most frequently mentioned of these other issues was the role of

It does not explore the perceptions of judicial officers in the lower courts who carry out the majority of the sentencing work in the Queensland criminal justice system. This area, although deserving of attention, is beyond the scope of this thesis. See further on the scope of the judicial study in chapter 3.A full description and methodology of the judicial study is contained in chapter 3.

10

victims in sentencing, perhaps reflecting the prominence of these issues in the media at

the time of the study. The interview transcripts were analysed in detail by comparing

and contrasting statements on various issues. Conclusions on how judges perceive the

process and go about making sentencing decisions were then drawn from the analysis of

the results.

This thesis deals with sentencing of adult offenders in the State of Queensland under the

Penalties and Sentences Act 1992 (Qld),30 and does not extend to the sentencing of

juveniles, which is separately governed in Queensland by the Juvenile Justice Act 1992

(Qld).31 Nor does it deal specifically with the sentencing of offenders in other

Australian jurisdictions, or Commonwealth offenders under the Crimes Act 1914

(Cth),32 although comparisons are made with other Australian jurisdictions, including

the Commonwealth, where necessary. It is not intended to answer the questions in this

thesis by discussion of case law, as the emphasis is on judicial attitudes and perceptions

as discerned from the judicial interviews. Appellate case law is however relied on from

time to time to illustrate specific points in the discussion.

All references to legislation in this thesis are to the Penalties and Sentences Act 1992 (Qld) unless otherwise indicated.As to sentencing juveniles, see generally; Arie Freiberg, Richard Fox and Michael Hogan, Sentencing Young Offenders., Commonwealth Youth Bureau and Australian Law Reform Commission Sentencing Research Paper No 11, Australian Law Reform Commission, Sydney, 1988; Kate Warner, “Juveniles in the Criminal Justice System” in George Zdenkowski, Chris Ronalds and Mark Richardson (eds), The Criminal Injustice System Volume Two, Pluto Press, Leichhardt, NSW, 1987; and also Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process: Report No 84 (chapter 19: Sentencing), Australian Law Reform Commission (ALRC 84), Canberra, 1997. For a discussion of the principles of sentencing juvenile offenders in Queensland, see John Robertson and Geraldine Mackenzie, Queensland Sentencing Manual, LBC Information Services, Sydney, 1998. As to the decision­making process in sentencing juveniles, see Daniel Mears, “The Sociology of Sentencing: Reconceptualizing Decisionmaking Processes and Outcomes” (1998) 32 Law and Society Review 661.Under the Australian Constitution, criminal law is largely a matter for the States. The only exceptions to this are matters specifically within Commonwealth jurisdiction, eg, taxation or telecommunications crime. Commonwealth criminal matters are generally heard in State courts, but in sentencing such offenders, State sentencing laws do not directly apply. As the Crimes Act 1914 (Cth) has a different sentencing regime from Queensland law, and is in fact less comprehensive; only sentencing under the Queensland Act is considered here, although the principles discussed in this thesis have general application. As to sentencing principles for Commonwealth offenders, see Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed, Oxford University Press, Melbourne, 1999, section 1.3, and references therein. See also Robertson and Mackenzie, above n 31, chapter 7.The discussion of case law is limited to appellate cases. The reason for this is that sentencing decisions at first instance are not “judgments”, and are therefore generally not published and

11

In this analysis of judicial methodology in sentencing, the aims and purposes of

sentencing generally are addressed, but matters individual to a particular case, such as

aggravating or mitigating factors,34 or sentencing for specific offences35 are not

discussed in detail. It also does not purport to deal with gender issues in sentencing;36

nor issues relating to sentencing indigenous offenders, beyond a brief treatment in

chapter 2.37

made readily available, as are civil judgments or appellate decisions in criminal matters. Decisions of the Queensland Court of Appeal are readily available both as unreported decisions and in law reports. The situation is similar in other Australian jurisdictions. In any event, appellate cases are likely to be the major source of statements of policy and detailed guidance on sentencing issues, both for other courts and sentencing scholars alike, as these cases are intended to provide guidance for the lower courts on sentencing principles to be followed.In Queensland, the factors which are to be taken into account in each case are listed in s 9(2) Penalties and Sentences Act 1992 (Qld). See also s 9(4) for factors which apply for offences involving violence or physical harm (by virtue of s 9(3)). For a detailed discussion of these factors, see Geraldine Mackenzie, Summary Offences, Law and Practice Queensland, Looseleaf, LBC Information Services, Sydney, 1995, paras 9.420-9.570; also Robertson and Mackenzie, above n 31, paras 9.10-10.450.For further reference on sentencing for specific offences, see Fox and Freiberg, above n 32, chapter 12. See also Ivan Potas, Sentencing Drug Offenders in New South Wales, Australian Institute of Criminology, Canberra, 1983; Ivan Potas, Sentencing for Break, Enter and Steal in New South Wales, Australian Institute of Criminology, Canberra, 1985; and Ivan Potas, Sentencing Robbers in New South Wales: Principles, Policy and Practice, Australian Institute of Criminology, Canberra, 1990.For discussion on sentencing of women in Queensland, and further references, see Taskforce on Women and the Criminal Code, Report of the Taskforce on Women and the Criminal Code, Office of Women’s Policy, Government of Queensland, Brisbane, 1999, Chapter 10: Sentencing. See also Carol Hedderman and Loraine Gelsthorpe, Understanding the Sentencing of Women, Home Office, London, 1997 which analyses statistical data and factors taken into account by sentencers in the UK. In the US, see Meda Chesney-Lind, The Female Offender: Girls, Women and Crime, Sage Publications, Thousand Oaks, Cal, 1997, chapter 7. The sentencing of women in Canada has recently been analysed by Martin, who points out that this issue has been largely overlooked by the criminal justice system: Dianne Martin, “Punishing Female Offenders and Perpetuating Gender Stereotypes” in Julian Roberts and David Cole (eds), Making Sense of Sentencing, University of Toronto Press, Toronto, 1999. See also Kathleen Daly and Michael Tonry, “Gender, Race and Sentencing” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 22, The University of Chicago Press, Chicago, 1997.Queensland courts have had comparatively little to say about sentencing indigenous offenders: see discussion in Robertson and Mackenzie, above n 31, 10.430. The Queensland Court of Appeal has however recently considered some of the matters to be taken into account when sentencing indigenous offenders: see R v Mara [1999] QCA 308, and commentary in Mackenzie, above n 34, 9.528. (See also Penalties and Sentences and Other Acts Amendment Act 2000, which came into operation on 27 October 2000, and which introduced procedures for accepting submissions from community justice groups from indigenous communities.) In relation to sentencing indigenous offenders generally, see in particular, New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders (Report No 96), Law Reform Commission Publications, Sydney, 2000; also John Nicholson, “The Sentencing of Aboriginal Offenders” (1999) 23 Criminal Law Journal 85; and Neil Lofgren, “Aboriginal Community Participation in Sentencing” (1997) 21 Criminal Law Journal 127. See also discussion of the relevance of

12

Most Australian jurisdictions have now introduced dedicated sentencing legislation

setting out sentencing principles to various degrees. The Australian jurisdictions of

Victoria, Queensland and the Northern Territory have similar sentencing legislation,

with clearly specified purposes of sentencing and detailed factors and principles to be

taken into account.38 * These three jurisdictions follow the Victorian model of legislation

from the Sentencing Act 1991 (Vic). Western Australia and South Australia both have39sentencing legislation which sets out sentencing principles to a more limited degree.

Tasmanian sentencing legislation enacted in 1997, while not specifically setting out

factors and principles in relation to sentencing, does state some purposes for sentencing

in the context of the purposes of the Act.40 The Australian Capital Territory and the

Commonwealth include sentencing principles in their general criminal legislation41 In

late 1999, New South Wales passed sentencing legislation which is largely

administrative and procedural in nature 42

It is not intended to discuss in this thesis the merits or otherwise of attempting a

comprehensive list of sentencing factors, or whether this is a constraint (unnecessary or

not) on judicial discretion 43 The general principles of sentencing are not specifically

discussed, except in passing in relation to other topics.44

ethnicity and cultural background o f the offender in Fox and Freiberg, above n 32, 3.716-3.718. There is a substantial amount o f other literature on this issue which will not be listed here, but much o f it is referred to in Fox and Freiberg. See also a comprehensive article by La Prairie on sentencing indigenous offenders in Canada, which raises many of the issues which arise in sentencing indigenous offenders in Australia: Carol La Prairie, “Sentencing Aboriginal Offenders: Some Critical Issues” in Julian Roberts and David Cole (eds), Making Sense of Sentencing, University of Toronto Press, Toronto, 1999. In relation to race and sentencing, see Roger Hood, Race and Sentencing: A Study in the Crown Court: A Report for the Commission for Racial Equality, Clarendon Press, Oxford, 1992.

See Penalties and Sentences Act 1992 (Qld), s 9; Sentencing Act 1991 (Vic) s 5; and Sentencing Act 1995 (NT ) s 5.

See Sentencing Act 1995 (W A) s 6; Criminal Law (Sentencing) Act 1988 (SA) s 10.

See Sentencing Act 1997(Tas), s 3. The primary consideration is said to be “protection o f the public” : see also discussion in Kate Warner, “ Sentencing Review 1997” (1998) 22 Criminal Law Journal 282, 286-289.

See eg, Crimes Act 1914 (Cth), s 16A; Crimes Act 1900 (AC T ) ss 429, 429A.

See Crimes (Sentencing Procedure) Act 1999 (NSW ); Crimes (Administration of Sentences) Act 1999 (NSW ); and Crimes Legislation Amendment (Sentencing) Act 1999 (NSW).

See eg, the New South Wales Law Reform Commission’s Discussion Paper on Sentencing which argued that factors relevant to sentencing ought not to be listed in consolidated sentencing legislation, on the basis that such a list could destroy flexibility in individual cases, and does not

13

This thesis does not purport to focus on these issues from a theoretical or criminological

perspective, except where discussed as background and context. The emphasis is on the

judicial views of the sentencing process itself, including fundamental questions of the

nature of that process, the application by the courts of the purposes for sentencing stated

in the Penalties and Sentences Act 1992 (Qld), judicial discretion, and the role of public

opinion and community expectations.

Further, this thesis does not examine the issues raised from an international comparative

perspective, except where relevant in the context of discussion of particular issues. For

example, United States sentencing guidelines are examined in the context of the

restriction of judicial discretion,45 and the reform initiatives and research contained in

the Canadian Sentencing Committee Report46 are discussed throughout ensuing chapters

in the same manner as recent Australian sentencing committee reports.47 Detailed

discussion and analysis of sentencing law and practices in other jurisdictions which

have not had much recent influence on the Queensland sentencing system, for example

the United Kingdom,48 are beyond the scope of this thesis.

add anything to the common law: New South Wales Law Reform Commission, Sentencing: Discussion Paper No 33, New South Wales Law Reform Commission, Sydney, 1996, 153. Cf ALRC 44, above n 15, and Crimes Act 1914 (Cth) s 16A.

For further reference on the principles and practice o f sentencing in Queensland, see Robertson and Mackenzie, above n 31; annotations and notes to the Penalties and Sentences Act 1992 (Qld) in Mackenzie, above n 34; and an earlier work, John Newton, Cases and Materials on Sentencing in Queensland, Australian Institute o f Criminology, Canberra, 1979. For other Australian jurisdictions see, Fox and Freiberg, above n 32; His Honour Judge Paul Mullaly, Victorian Sentencing Manual, 2nd ed, Law Crest, Ormond, Vic, 1999; Kate Warner, Sentencing in Tasmania, The Federation Press, Leichhardt, NSW, 1991 (a new edition o f this work is forthcoming); Mary Daunton-Fear, Sentencing in South Australia, Law Book Co in association with the Australian Institute of Criminology, Sydney, 1980; and Mary Daunton-Fear, Sentencing in Western Australia, University o f Queensland Press, in association with the Australian Institute o f Criminology, St Lucia, 1977.

See principally the discussion in chapter 5 at 4.4.

Canadian Sentencing Commission Report, above n 18. Current sentencing practices in Canada are also discussed briefly in chapter 2 at 2.4.

The principal ones discussed are ALRC 44, above n 15; Victorian Sentencing Committee Report, above n 17; and New South Wales Law Reform Commission, Sentencing (Report No 79), Sydney, 1996.

For analysis and discussion of recent sentencing laws in the UK, see D A Thomas, “Sentencing Reform: England and Wales” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995; Andrew Ashworth, “The New English Sentencing System” (1992) 25 University of California Law Review 755; Andrew Ashworth, “The Criminal Justice Act 1991” in Colin Munro and Martin Wasik (eds), Sentencing, Judicial

14

The conclusions from this study may not have direct relevance for all jurisdictions;

however much of the revealed judicial psyche and methodology is pertinent to common

law sentencing traditions, particularly in Australia, the United Kingdom and Canada.

The United States has undergone profound and fundamental change in sentencing

policy and procedures since the 1970s,49 and therefore the findings of this study may not

have direct relevance, except perhaps to confirm some of the suspicions held by those

seeking to justify the determinate systems now in place in many United States

jurisdictions.50

Conclusions from the study are important for the further understanding of both the

sentencing process, and the link between theory, policy and practice. The research is

therefore relevant for sentencing scholars, those involved in policy formation and the

practice of sentencing itself, in particular the judges.

4 Justification for a study of Queensland judgesSentencing in Queensland is governed by the Penalties and Sentences Act 1992 (Qld).51

This Act received assent on 24 November 1992, and came into effect in two stages, on

27 November and 18 December 1992. The Penalties and Sentences Act was enacted

soon after the Sentencing Act 1991 (Vic), and has many similarities with the Victorian

legislation; for example the list of aims and purposes in each Act is nearly identical, as

Discretion and Training, Sweet and Maxwell, London, 1992; and Sue Rex, “Applying Desert Principles to Community Sentences: Lessons from Two Criminal Justice Acts” [1998] Criminal Law Review 381.

For a comprehensive discussion o f the changes in sentencing policies and practice in the United States over the past 25 years and the move away from indeterminate sentencing, see Richard Frase, “Sentencing Guidelines in Minnesota and Other American States: A Progress Report” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995; Michael Tonry, Sentencing Matters, Oxford University Press, New York, 1996; Andrew von Hirsch, “Proportionality and Parsimony in American Sentencing Guidelines: The Minnesota and Oregon Standards” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995; and Anthony Doob, “The United States Sentencing Commission Guidelines: If you don’t know where you are going, you might not get there” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995. See also discussion of United States sentencing guidelines in chapter 5.

See discussion o f this in chapter 5.50

15

S9are the sentencing guidelines. The Victorian S e n te n c in g A c t was the culmination of a

decade long period of sentencing reform in Victoria; a period when Victoria, as Ane

Freiberg observes, was grappling with “the ubiquitous problems confronting the

common law world, identified variously as discretion, disparity, desert, severity and

veracity” .54 The Victorian Act was also an outcome of the Victorian Sentencing

Committee’ s investigations of sentencing in that State, which resulted in a

comprehensive report in 19 8 8.55 The Victorian study was conducted at the same time as

the Australian Law Reform Commission study into the sentencing of federal offenders

which culminated in Report No 44 in 198 8.56 These inquiries considered similar issues

and identified similar problems, and made extensive reform recommendations.

There was no similar lengthy investigation into sentencing in Queensland, nor was the

Queensland Act the work of such a sentencing committee. The P e n a lt ie s a n d S en ten ces

A c t 1992 (Qld) is best seen as a consequential effect of intensive work in other

jurisdictions, particularly Victoria, where the S e n te n c in g A c t 1991 had been introduced

the previous year.57

In enacting the P e n a lt ie s a n d S en ten ces A c t in 1992 the Queensland Parliament for the

first time confronted the need to consolidate the law relating to sentencing in

Queensland with an Act solely devoted to the sentencing and punishment of offenders.

Criminal law had been codified in 1899 by the C r im in a l C o d e (Qld), but the P e n a lt ie s

a n d S e n te n ces A c t , as will be seen in the discussion in chapter 2, was a complete

This Act is discussed in detail in chapter 2.

Penalties and Sentences Act 1992 (Qld) s 9; c f Sentencing Act 1991 (Vic) s 5.

See Arie Freiberg, “Sentencing Reform in Victoria: A Case-Study” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995, 51.

Ibid.

Victorian Sentencing Committee Report, above n 17. See also Arie Freiberg and Stuart Ross, Sentencing Reform and Penal Change: The Victorian Experience, The Federation Press, Sydney. 1999; and also Freiberg, “Sentencing Reform in Victoria: A Case-Study” , above n 53.

ALRC 44, above n 15. These reports and others are discussed in more detail in chapter 2.

Information on the genesis o f the Queensland Act is not available and has never been publicly given. The only information available to the author from government sources and the author’ s own knowledge suggests that the Act was indeed at least partly based on the 1991 Victorian legislation, the Sentencing Act, which had recently been enacted. The interview conducted by the author in 1996 with the Attorney-General who introduced the Bill, the Hon Dean Wells, (see Appendix to this thesis), did not shed any light on the question.

16

overhaul of the law on sentencing, which had until then been almost totally driven by

common law principles. Although the process of sentencing reform in Victoria has

been the subject of detailed research,58 sentencing reform in Queensland has not been

exposed to such scrutiny.59

This thesis examines judicial perceptions of the sentencing process in the context of

sentencing in the State of Queensland. A study of judges working in Queensland was

chosen for a number of reasons. First, the jurisdiction was well known to the researcher

through previous experience as a legal practitioner as well as involvement in teaching

and research. Secondly, the researcher was known to a number of the judges for the

same reasons, which facilitated access to them and enhanced their willingness to

participate. Credibility of the researcher and confidence in the project were crucial to

the exercise.

A further justification concerns the effect of public opinion on sentencing, and the rise

of sentencing as a law and order issue in political election campaigns. These issues

have been at the forefront of several recent Queensland State Government elections in

1995 and 1998 (and again in February 2001), with Queensland also achieving

worldwide notoriety with the rise of right wing political parties and other influences.60

The historical reasons for this are explored in chapter 2, which analyses the legal and

socio-political context of sentencing in Queensland, and discusses the climate under

which judges sentence offenders in the State. The effect of law and order, public

opinion and the media on sentencing is discussed in chapter 7.

Victorian Sentencing Committee Report, above n 17; see also Freiberg “Sentencing Reform in Victoria: A Case Study” , above n 53; Freiberg and Ross, above n 55.

There are however works on the principles and practice o f sentencing in Queensland, see n 44 above.

O f particular relevance is the rise o f the political party known as Pauline Hanson’s One Nation, and other right wing political forces such as the pro-gun lobby, which have been particularly active in the State in recent years. On the rise o f One Nation, see generally Bligh Grant (ed), Pauline Hanson: One Nation and Australian Politics, University o f New England Press, Armidale, NSW, 1997; Margo Kingston, Off the Rails: The Pauline Hanson Trip, Allen and Unwin, St Leonards, NSW, 1999; and Michael Leach, Geoffrey Stokes and Ian Ward (eds), The Rise and Fall of One Nation, University of Queensland Press, St Lucia, 2000.

17

Because Queensland made a fundamental change from a common law sentencing

regime to a statutory one in late 1992, this study also presents an opportunity to examine

the ability of the sentencing system and the judiciary to cope with change. There have

been discussions in the literature, particularly in the context of the move in many United

States jurisdictions to determinate sentencing systems, of the question of whether

behaviour on the part of sentencers and other parties effectively either nullifies or adapts

sentencing law.61 Ashworth refers to this as the “drag co-efficient” ; that is, the extent to

which such resistance and adaptive behaviour can slow down change in sentencing law

and blunt its effectiveness.62 *

5 Theory and philosophy of sentencing: recent trends5.1 Thirty years of sentencing reform

In 1969, Nigel Walker famously wrote, “ if criminal law as a whole is the Cinderella of

jurisprudence, then the law of sentencing is Cinderella’s illegitimate baby” . Over 20

years later, it was said that the baby had grown up and produced large numbers of

offspring.64 Reproductive metaphors aside, there have been significant changes and

development m sentencing theory, policy and practice in the 30 years since those words

were written.

The past 30 years has seen considerable theoretical developments in criminology, the

sociology of punishment and theories of punishment which have in turn informed the

process of reform which has occurred in many jurisdictions worldwide.

Ashworth, “Reflections on the Role of the Sentencing Scholar” , above n 4, 262, citing the fact that the Minnesota guidelines suffered such erosion. See also Tonry, Sentencing Matters, above n 49, 33 where he states that plea bargaining in Minnesota sometimes made compliance with the guidelines more “apparent than real” .

Ashworth, “Reflections on the Role o f the Sentencing Scholar” , above n 4, 262. See also Raymond Nimmer, The Nature of System Change: Reform Impact in the Criminal Courts, American Bar Foundation, Chicago, 1978.

Nigel Walker, Sentencing in a Rational Society, Penguin Books Ltd, Harmondsworth, 1969, 15.

Peter Sallmann, “ In Search of the Holy Grail of Sentencing: An Overview of Some Recent Trends and Developments” (1991) Journal of Judicial Administration 124, 125.

18

The following sections give a brief overview of these developments, as part of the

background and context for this study.63 It does not purport to be other than a

thumbnail sketch of these developments to place the key issues, which are the actual

subject of this thesis, in context. Where relevant, the literature is further discussed in

subsequent chapters.

5.2 The decline of rehabilitation

Criminological theories have gone through waves of fashion over the past 200 years;

from classical theory to utilitarianism, empiricism and positivism, and then the rise of

sociological theories in the twentieth century.66 These theories have underpinned the

traditional aims of punishment, which are said to be retribution, deterrence and

rehabilitation.67

The utilitarian theories of deterrence and rehabilitation were dominant in the 1960s and

early 1970s.68 By the late 1970s however rehabilitation was out of favour after

widespread disillusionment as to its effectiveness,69 and other reasons.70 This so called

There is a myriad o f literature on sentencing trends over the past 30 years, too large to be addressed in detail in the context o f this study. For further reference and essays on sentencing theory, see Andrew von Hirsch and Andrew Ashworth, Principled Sentencing: Readings on Theory and Punishment, 2nd ed, Hart Publishing, Oxford, 1998; and on the reform process in a number o f different countries, see Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995. Specifically in Australia, see Freiberg and Ross, above n 55, and David Brown et al, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, 3rd ed, The Federation Press, Sydney, 2001, chapter 12. See also George Zdenkowski, “Sentencing Reform in NSW - An Opportunity Missed” (1990) 5 Campaign for Criminal Justice 4; and George Zdenkowski, “Sentencing Trends: Past, Present and Prospective” in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000.

See generally Brett Mason, “From Shamans to Shaming: A History o f Criminological Thought” in Kayleen Hazlehurst (ed), Crime and Justice: An Australian Textbook in Criminology, LBC Information Services, Sydney, 1996; Rob White and Fiona Haines, Crime and Criminology: An Introduction, 2nd ed, Oxford University Press, Melbourne, 2000.

Brown et al, Criminal Laws, above n 65, 1379, noting that incapacitation (protection) and reparation (restitution) are sometimes included. To this can also be added denunciation. These are discussed in detail in chapter 6.

Hogarth, above n 7, 4.

Stephen Brody, “How Effective are Penal Treatments?” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998.

Sallman, above n 64, 135; Francis Allen, “The Decline o f the Rehabilitative Ideal” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theoiy and

19

“decline of rehabilitation”71 as a preferred punishment goal in the 1970s was one of the

most important developments of that decade. According to Francis Allen, the reasons

for rehabilitation falling out of favour were three; that it constituted a threat to the

political values of free societies; that it was “peculiarly vulnerable to debasement and

the serving of unintended and unexpressed social ends” ; and that a rehabilitative

technique was lacking so that it was not known how to prevent recidivism by changing

the behaviour of offenders.72 The latter perception was reflected in a study by Robert

Martinson published in 197 473 which purported to show that rehabilitative efforts were

having little effect on recidivism.74 His findings were widely interpreted as “nothing

works” .75 Before he died, he attempted to correct this interpretation, but as Walker

noted,76 the correction appeared only in an obscure journal.77 Andrew von Hirsch and

Lisa Maher have commented however that the assertion that “nothing works” assumes78erroneously that the main problem of treatment is in establishing its effectiveness.

Utilitarianism79 has not disappeared as a sentencing justification, 80 but the decline in

popularity of rehabilitation has paralleled a shift in emphasis, at least in the literature, to

Punishment, 2nd ed, Hart Publishing, Oxford, 1998; Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 65, 162.

Allen (ibid).

Ibid 14-15.

Robert Martinson, “What Works? Questions and Answers About Prison Reform” (1974) 35 The Public Interest 22.

Allen, above n 70, 17; Brody, above n 69, 9; Sue Rex, “A New Form of Rehabilitation” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998, 35; Fox and Freiberg, above n 32, 214 (citing also discussion on this point by the Victorian Sentencing Committee: Victorian Sentencing Committee Report, above n 17, 78-88.); Brown et al, Criminal Laws, above n 65, 1383.

Nigel Walker, Why Punish?, Oxford University Press, Oxford, 1991, 46 Brown et al, Criminal Laws, above n 65, 1383.

Walker (ibid) 46.

Robert Martinson, “New Findings, New Views: A Note o f Caution Regarding Sentencing Reform” (1979) 7 Hofstra Law Review 243. See also: Rick Sarre, “Beyond ‘What Works?’ A 25-Year Jubilee Retrospective o f Robert Martinson’s Famous Article” (2001) 34 The Australian and New Zealand Journal of Criminology 38.

Andrew von Hirsch and Lisa Maher, “Should Penal Rehabilitationism Be Revived?” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998, 27.

Utilitarianism as a justification for punishment is the theory that pain and pleasure motivate human action and that if the pain is greater than the pleasure, the person will desist from that action: Jeremy Bentham, “Punishment and Deterrence” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998. Utilitarian theories are deterrence, rehabilitation and incapacitation.

20

other utilitarian sentencing goals including deterrence and incapacitation. Debate

continues as to whether rehabilitation should be revived in importance, perhaps with an

acknowledgment of its earlier shortcomings.82 * * *

81

5.3 Neo-retributivism: just deserts

In the mid 1970s the notion of deserved punishment rose to prominence in the debate on

justifications for sentencing. The rise of this theory is often attributed to the report of

the Committee for the Study of Incarceration, Doing Justice: The Choice of

Punishments, by Andrew von Hirsch. Von Hirsch rejected the phrase “retribution” ,

preferring the more descriptive and less emotionally loaded term “desert” .86 * Although

von Hirsch initially used the term “commensurate deserts” , the theory is now more

commonly referred to as “just deserts” , with von Hirsch its leading exponent.88 Both

retribution and just deserts are said to be backward looking principles, where the

Section 9(1) o f Penalties and Sentences Act 1992 (Qld) contains the utilitarian purposes of rehabilitation, special and general deterrence, and protection.

Andrew von Hirsch, Censure and Sanctions, Clarendon Press, Oxford, 1993, 95.

See eg, Francis Cullen and Karen Gilbert, “Reaffirming Rehabilitation” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998; von Hirsch and Maher, above n 78.

Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 65, 162.

Andrew von Hirsch, Doing Justice: the Choice of Punishments, Northeastern University Press (originally published: New York, Hill and Wang, 1976), Boston, 1986. The movement toward just deserts is described in Andrew von Hirsch, “Proportionate Sentences: A Desert Perspective” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998. Von Hirsch suggests that the origin o f a proportionality based sentencing theory may have come from a 1971 Quaker publication, American Friends Service Committee, Struggle for Justice, Hill and Wang, New York, 1971. See also discussion and analysis of von Hirsch’s work in Anthony Bottoms, “Five Puzzles in von Hirsch’ s Theory o f Punishment” in Andrew Ashworth and Martin Wasik (eds), Fundamentals of Sentencing Theory, Clarendon Press, Oxford, 1998.

As to retribution generally, see essays in chapter 4, Andrew von Hirsch and Andrew Ashworth, Principled Sentencing: Readings on Theory and Punishment, 2nd ed, Hart Publishing, Oxford, 1998.

Von Hirsch, Doing Justice: the Choice of Punishments, above n 84, 46.

Ibid, chapter 8.

Sallman, above n 64, 135. There is a large literature on just deserts which will not explored in detail in this thesis. Some of the writings by Andrew von Hirsch on just deserts include: von Hirsch, Censure and Sanctions, above n 81; Andrew von Hirsch, “Desert and Previous Convictions in Sentencing” (1981) 65 Minnesota Law Review 521; Andrew von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals, Rutgers University Press, New Brunswick, 1987. See also Richard Singer, Just Deserts: Sentencing Based on Equality and Desert, Ballinger Publishing Company, Cambridge, Massachusetts, 1979; and R A Duff, Trials and Punishments, Cambridge University Press, Cambridge, 1986.

21

offender is punished based on her or his past conduct.89 The ideology of desert has been

said to be the natural enemy of the “unruly goals of rehabilitation, deterrence and social

protection” .90

Although just deserts was in part an antidote and reaction to the liberalism of

rehabilitation theory which flourished in the 1960s and early 1970s,91 it has also been

described as linked to a theory of human rights.92 This argument is premised on the

underlying concept of human rights being the idea of fairness which is central to desert

theory. Desert, according to this theory, is therefore one of the developments in

human rights which has been growing in political significance since the 1950s.94

Despite the fact that all aspects of desert theory and its manifestations have not always

met with approval,95 just deserts has been an undoubted major influence on sentencing

developments of the 1980s, 1990s and beyond.96 The influence of just deserts in the

development of sentencing policy can be clearly seen, with identification of the theory

as an underlying primarily rationale for sentencing by the Australian Law Reform

Commission in 1988, the Victorian Sentencing Committee also in 1988, and the

89

90

91

92

93

94

95

96

97

98

Von Hirsch, Doing Justice: the Choice of Punishments, above n 84, 46. Von Hirsch further developed the debate on punishing past or future offending in Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (ibid).

D J Galligan, “Guidelines and Just Deserts: A Critique o f Recent Trends in Sentencing Reform” [1981] Criminal Law Review 297, 298.

Walker, Why Punish?, above n 75, 9; Nigel Walker, “Desert: Some Doubts” in Andrew von Hirsch and Andrew Ashworth (eds), Principled. Sentencing: Readings on Theory and Policy, 2nd ed. Hart Publishing, Oxford, 1998, 156

Anthony Bottoms, “The Philosophy and Politics of Punishment and Sentencing” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995,22-23.

Ibid.

Ibid.

See eg, critique of just deserts in Brown et al, Criminal Imws, above n 65, at 12.2.1. See also David Brown, “The Politics o f Reform” in George Zdenkowski, Chris Ronalds and Mark Richardson (eds), The Criminal Injustice System Volume Two, Pluto Press, Sydney, 1987, 261- 263. See also a discussion of the debate on desert theory in Andrew Ashworth, “Desert” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998, and the readings which follow in chapter 4 of that work.

Ashworth, “Desert” , above n 95; Ashworth, “Criminal Justice and Deserved Sentences” , above n 10; Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 65, 162.

ALRC 44, above n 15.

Victorian Sentencing Committee Report, above n 17.

22

Canadian Sentencing Committee in 1987." According to Ashworth, just deserts

“provides a fairly clear framework within which the allocation of sentences can be

decided consistently and comprehensively with due regard for the rights of all members

of society, including the offender” .100 While some commentators have seen just deserts

as productive of an escalation in severity,101 von Hirsch has argued that this need not be

the case, and in fact desert can permit reductions in penalty.102 Just deserts and other

“new retributivist” theories endure in popularity in the academic debate, and continue to

evolve.103

Desert has influenced sentencing systems in many countries, including the sentencing

commission and guidelines-based systems in a number of American states.104 Some of

the sentencing commissions in the United States have expressly adopted just deserts as a

rationale for their sentencing guidelines, for example Minnesota, Kansas and Oregon;105

but there are notable exceptions, such as the United States Sentencing Commission (thei az:

federal jurisdiction).

This has also been the case in a number of European countries, including Finland,107 108Sweden and England. The power of just deserts can also be seen in the sentencing

99

100 101 102 103

104

105

106

107

Canadian Sentencing Commission Report, above n 18.

Ashworth, “Criminal Justice and Deserved Sentences” , above n 10, 355.

Tonry, Sentencing Matters, above n 49, 13.

Von Hirsch, “Proportionate Sentences: A Desert Perspective” , above n 84, 176.

See eg, Richard Frase, “Sentencing Principles in Theory and Practice” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 22, The University of Chicago Press, Chicago, 1997, 363; Wojciech Sadurski, “Distributive Justice and the Theory of Punishment” (1985) 5 Oxford Journal of Legal Studies 47.

Leslie Wilkins, “Sentencing Guidelines to Reduce Disparity” [1980] Criminal Law Review 201, 202-203. See also discussion in Tonry, Sentencing Matters, above n 49, chapter 1. US sentencing guidelines are examined in chapter 5.

Tonry, Sentencing Matters, above n 49, 14; von Hirsch, “Proportionate Sentences: A Desert Perspective” , above n 84, 168. See also Andrew von Hirsch, “Proportionality and Parsimony in American Sentencing Guidelines: The Minnesota and Oregon Standards” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995

The US Sentencing Commission expressly declined to nominate just deserts as an underlying rationale, arguing that the result would be the same using either just deserts, or a “crime control” rationale (in which they included deterrence or incapacitation). See United States Sentencing Commission, Guidelines Manual, November 1998, 3.

(Available on-line at http://www.ussc.gov/).

Nils Jareborg, “The Swedish Sentencing Reform” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995.

23

guidelines laid down in sentencing legislation in a number of Australian jurisdictions

where just deserts (or at least just punishment), is listed as either one the purposes for

sentencing,109 or as an apparently primary consideration.110

Desert theory is strongly linked with the principle of proportionality in which the

offender is punished in proportion to her or his wrongdoing.111 As von Hirsch pointed

out in 1976, these concepts are not new;112 * * for example, Beccaria in his eighteenth

century work On Crimes and Punishments said, “there must be a proportion between

crimes and punishments” . The principle of desert rejects positivist utilitarian notions

based on anticipation of the offender’s future behaviour, and instead justifies

punishment on the basis of the gravity of the crime actually committed UA

Proportionality has been referred to as a limiting principle,115 and was devised to restrict

the state’ s authority to punish, and to limit use of severe sanctions.116 In Australia, the

Thomas, above n 48; Ashworth, “The Criminal Justice Act 1991” , above n 48; Ashworth, “The New English Sentencing System” , above n 48; Rex, “Applying Desert Principles to Community Sentences: Lessons from Two Criminal Justice Acts” , above n 48. A detailed examination o f the sentencing system in the UK is beyond the scope o f this thesis.

Penalties and Sentences Act 1992 (Qld) s 9 (l)(a ); Sentencing Act 1991 (V ic) s 5 (l)(a ); Sentencing Act 1995 (NT) s 5 (l)(a ); Criminal Law (Sentencing) Act 1988 (SA) s 10(i); Crimes Act 1900 (ACT), s 429(a).

Sentencing Act 1995 (W A ) s 6 (l)(a ): “sentence must be commensurate with the seriousness of the offence” ; Crimes Act 1914 (Cth) s 16A(1): “ sentence must be o f a severity appropriate in all the circumstances of the offence” .

Andrew von Hirsch, “Proportionality in the Philosophy o f Punishment” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 16, The University o f Chicago Press, Chicago, 1992; Andrew von Hirsch, “Proportionality in the Philosophy o f Punishment: From ‘Why Punish?’ to ‘How Much?’“ (1990) 1 Criminal Law Forum 259.

Von Hirsch, Doing Justice: the Choice of Punishments, above n 84, 67.

Cesare Beccaria, On Crimes and Punishments, and Other Writings, Cambridge University Press (edited by Richard Bellamy; translated by Richard Davies, Virginia Cox), Cambridge, 1995, 19.

Andrew von Hirsch, “Utilitarian Sentencing Resuscitated: The American Bar Association’s Second Report on Criminal Sentencing” (1981) 33 Rutgers Law Review 772; also see generally, Von Hirsch, Doing Justice: the Choice of Punishments, above n 84.

Norval Morris, “Desert as a Limiting Principle” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998, 180; and Frase, “Sentencing Principles in Theory and Practice” , above n 103. See also Richard Fox, “The Meaning o f Proportionality in Sentencing” (1994) 19 Melbourne University Law Review 489, and Kate Warner, “Purposes o f Sentencing” in Criminal Sentencing, The Laws of Australia, LBC Information Services, Sydney, Vol 12.1, [44], C f von Hirsch, “Proportionate Sentences: A Desert Perspective” , above n 84, 173. See also Mirko Bagaric, “Proportionality in Sentencing: Its Justification, Meaning and Role” (2000) 12 Current Issues in Criminal Justice 142.

24

principle of proportionality has assumed a central role in the sentencing process117subsequent to influential comments 4by the High Court in T h e Q u e e n v V een (N o 1 )

and T h e Q u e e n v V een (N o 2). In particular, the joint judgment of Mason CJ,

Brennan, Dawson and Toohey JJ in V een (N o 2 ) contains the following statement:

The principle of proportionality is now firmly established in this country. It was

the unanimous view of the Court in V een ( N o l ) that a sentence should not be

increased beyond what is proportionate to the crime in order merely to extend

the period of protection of society from the risk of recidivism on the part of the

offender.119 * * *

Despite this renaissance of neo-retributive theory in the literature, in sentencing policy,

and in aspects of sentencing legislation; it is the utilitarian purpose of deterrence which

has continued to enjoy prominence in the Australian appellate courts. Witness for

example the cases of P a u li , E l K a r h a n i ,1 and S in c la i r “ where the New South

Wales and Western Australian Courts of Criminal Appeal deliberately disavowed the

statutory omission of general deterrence in s 16A C r im e s A c t 1914 (Cth) , 123 despite the

Australian Law Reform Commission’s report, S e n te n c in g , having specifically excluded

general deterrence as a desirable sentencing goal.124 The fact that the courts have

Von Hirsch, Censure and Sanctions, above n 81, 89. See also the discussion of ordinal and cardinal proportionality in Ashworth, “Criminal Justice and Deserved Sentences” , above n 10, 344.

(1979) 143 CLR458.

(1988) 164 CLR 465. See analysis in Richard Fox, “The Killings o f Bobby Veen: The High Court on Proportion in Sentencing” (1988) 12 Criminal Law Journal 339. See also comments by the High Court in Hoare v The Queen (1989) 167 CLR 348. There is a comprehensive discussion on the role o f proportionality in sentencing in Fox, “The Meaning o f Proportionality in Sentencing” , above n 115.

(1988) 164 CLR 465, 472.

(1990) 20 NSW LR 427, 434.

(1990) 21 NSWLR 370, 377-378.

(1990)51 A Crim R 418, 430.

The supposed inferential inclusion o f general deterrence is based on a rather wide interpretation o f s 16A(1) - see above n 110.

ALRC 44, above n 15, Recommendation 9: “Incapacitation of the offender, and general deterrence, should not be invoked as goals or objectives by sentences” . Section 16A Crimes Act was based on these recommendations, and does not refer to general deterrence.

25

1 9Sregarded this omission as probably a “legislative slip” , (despite compelling evidence

to the contrary) ,126 * * demonstrates the importance with which general deterrence is127viewed in practice. This phenomenon is discussed in chapter 6.

6 Judicial discretionTraditionally, Australian judges when sentencing have operated under systems where

they had fairly free rein, apart from appellate review and any common law or legislative

restrictions. Sentencing laws introduced in the various Australian jurisdictions list the

purposes for which sentences may be imposed, and provide principles of sentencing

under which this is to be done; but generally it is left to the individual judicial officer

to apply these to the case before him or her in a way that they see fit, subject of course

to maximum penalties and other legislative and jurisdictional limits. This is now

beginning to change with legislative moves in some Australian jurisdictions to

mandatory sentencing laws,129 restrictions on sentences for violent offenders,130 and

El Karhani (1990) 21 NSWLR 370, 378.

Section 16A Crimes Act 1914 (Cth) refers to special deterrence only (s 16A(2)(j)), and is based on the recommendations in ALRC 44, which specifically states in recommendation 9: “ Incapacitation of the offender, and general deterrence, should not be invoked as goals or objectives by sentencers.” : ALRC 44, above n 15, Recommendation 9, (see above n 124).

See also discussion in Fox and Freiberg, above n 32, 207-208; and Jeff Smith, “Clothing the Emperor: Towards a Jurisprudence of Sentencing” (1997) 30 The Australian and New Zealand Journal o f Criminology 168, 173. See also strong criticism o f the omission o f general deterrence from s 16A in Michael Rozenes, “Fundamental Flaws in Sentencing Law” (1992) Australian Law News 12. In addition, general deterrence continues to have its advocates in the sentencing literature: see eg, Mirko Bagaric, “ Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?” (2000) 24 Criminal Law Journal 21, where it is argued that in light o f the “cracks that have emerged in retributivism” (at 23), general deterrence as a punishment objective should be invoked (along with proportionality to fix the amount of punishment): at 45. Incapacitation, specific deterrence and rehabilitation are rejected by the author on the grounds o f the current empirical evidence: at 45.

See above at part 3.

See eg, Sentencing Act 1995 (NT), Division 6, in particular s 78A; Crime (Serious and Repeat Offenders) Act 1992 (W A), and now s 401(4) Criminal Code 1913 (W A). See commentary on mandatory sentencing in Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 65, 173-175; George Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” (2000) 12 Current Issues in Criminal Justice 58, 60-63; Brown et al, Criminal Laws, above n 65, at 12.3.6; George Zdenkowski, “Mandatory Imprisonment of Property Offenders in the Northern Territory” (1999) 22 UNSW Law Journal 302; Helen Bayes, “Punishment is Blind: Mandatory Sentencing of Children in Western Australia and the Northern Territory” (1999) 22 UNSW Law Journal 286; Russell Hogg, “Mandatory Sentencing Laws and the Symbolic Politics of Law and Order” (1999) 22 UNSW Law Journal 262; Neil Morgan. “Capturing Crims or Capturing Votes? The Aims and Effects o f Mandatories” (1999) 22

26

even sentencing grids.131 * Perhaps the most important non-legislative change to

sentencing has been the decision by the New South Wales Court of Appeal to introduce

guideline judgments; the first being in a dangerous driving case called R v Jurisic . In

some jurisdictions in the United States, judicial discretion has been almost totally

supplanted by structured statutory regimes.133

George Zdenkowski points out that the recent Australian restrictions on judicial

discretion have been driven not by a desire for consistency and fairness derived from

just deserts theory, but by a perceived need for the escalation of sentence severity,

driven by “ law and order populism” .134 Recent public disquiet at the injustices brought

by mandatory sentencing has demonstrated that law and order can have superficial

University of New South Wales Law Journal 267; Neil Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?” (2000) 24 Criminal Law Journal 164. Mandatory sentencing is discussed in more detail in chapter 5.See eg, Penalties and Sentences Act 1992 (Qld) Part 9A Serious Violent Offences; Part 2A Serious Offenders, Sentencing Act 1991 (Vic).The Western Australian Parliament proposed the introduction of a sentencing matrix system, initially via the Sentencing Legislation Amendment and Repeal Bill 1998. This Bill was divided in two in 1999, including the Sentencing Matrix Bill 1999, which provided for the establishment of a two-stage sentencing matrix system. This Bill then became the Sentencing Amendment Bill 2000, which was passed and assented to on 6 December 2000 (Act no 64 of 2000). The Act was not proclaimed before the 2001 Western Australian elections, which resulted in a change in Government. See comment and analysis of the sentencing matrix proposal in: Neil Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?” (1999) 28 Western Australia Law Review 259; Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 65, 178-180; also discussion on sentencing grids by Hon Justice Michael Adams, “Launch of UNSW Law Journal Forum” (1999) 22 UNSW Law Journal 257.(1998) 45 NSWLR 209, (1998) 101 A Crim R 259. See comment: Donna Spears, “Structuring Discretion: Sentencing in the Jurisic Age” (1999) 22 UNSW Law Journal 295; Neil Morgan and Belinda Murray, “What’s in a Name? Guideline Judgments in Australia” (1999) 23 Criminal Law Journal 90; Mr Justice P W Young, “Guideline Judgments in Criminal Appeals” (1999) 73 Australian Law Journal 13; Evelyn McWilliams, “Sentencing Guidelines: Who Should be the Arbiter, The Judiciary or Parliament?” (1998) 36 Law Society Journal 48; Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 65, 175-178. See also a summary of recent developments in Hon Brian Sully, “Trends in Guideline Judgments” (2001) 20 Australian Bar Review 250.Tonry, Sentencing Matters, above n 49, chapter 1.Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 65, 173. See also Hogg and Brown, above n 24, 4; David Brown, “Mandatory Sentencing: A Criminological Perspective” , UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000, 74. See also Arie Freiberg, “Guerillas in our Midst?” in Mark Brown and John Pratt (eds), Dangerous Offenders: Punishment and Social Order, Routledge, London, 2000, 66- 68 in relation to the restrictions on discretion for those deemed dangerous offenders.Discussed in Zdenkowski (ibid).

27

1 qz:appeal until there are unwanted and unpleasant consequences. These restrictions on

judicial discretion are considered further in chapter 5.

It is reasonable to suggest that if the judge has substantially unfettered discretion in

sentencing matters, and if the sentencing decision is made by way of intuitive

synthesis, experience, gut feeling, or whatever process the judge employs; that the

judge’s own experience and values will form part of how he or she views the matter in

court, and will ultimately affect the sentence. There are, for example, American studies

which look at the influence in the decision-making process of a judge’s religious beliefs

and the possible inclusion of those beliefs in her or his judgments, even in a

subconscious manner. As with most of the other matters concerning the judge’s

experience and values, although the religious affiliations of some judges may be well

known, the effect of these views on their ultimate decision will always be a matter of

conjecture. It has been suggested however that it would be fair to conclude that

judicial decision-making will be influenced, to some extent, by the judge’s religious

values.140 This is just one example where the literature suggests that the judge’s

personal views may have an impact on the exercise of discretion in sentencing. Andreas

Kapardis notes other studies where it is suggested that the gender and politics of a

sentencer may also have an influence on the sentencing discretion.141

In February 2000, a 15-year-old Aboriginal boy hung himself while detained on a 14 day mandatory sentencing order in the Northern Territory (for stealing textas and some other minor items), causing immense public and political disquiet. See discussion on the increased risk of deaths in custody in Dianne Johnson and George Zdenkowski, Mandatory Injustice: Compulsory Imprisonment in the Northern Territory, Centre for Independent Journalism, Sydney, 2000; Brown, “Mandatory Sentencing: A Criminological Perspective” , above n 134, 73-74; and commentary: Susanna Lobez; Interview with Professor Arie Freiberg, “Mandatory Sentencing: A Wider Perspective” , The Law Report, ABC Radio National, Sydney, 18 April 2000 (Transcript available at: http://www.abc.net.aU/rn/talks/8.30/lawrpt/stories/sl 19546.htm).See R v Williscroft [1975] VR 292 and subsequent cases, discussed in detail in chapter 4.Scott Idleman, “The Limits of Religious Values in Judicial Decision Making” (1998) 81 Marquette Law Review 537. See also Daniel O Conkle, “Religiously Devout Judges: Issues of Personal Integrity and Public Benefit” (1998) 81 Marquette Law Review ; Wendell L Griffin, “The Case for Religious Values in Judicial Decision-Making” (1998) 81 Marquette Law Review 513; Scott C Idleman, “The Role of Religious Values in Judicial Decision-Making” (1993) 68 Indiana Law Journal 433.Scott Idleman, “The Limits of Religious Values in Judicial Decision Making” (1998) 81 Marquette Law Review 537, 546-547.Ibid 547.Andreas Kapardis, Psychology and Law: A Critical Introduction, Cambridge University Press, Cambridge, 1997, 168.

28

These are matters of which the judge may not be consciously aware. According to

Justice Kirby,

Decision-making in any circumstances is a complex function combining logic

and emotion, rational application of intelligence and reason, intuitive responses

to experience, as well as physiological and psychological forces of which the

decision-maker can be only partly aware.142

The vesting of sentencing discretion in the courts will always raise issues of

individualised decision-making and disparity. Thus according to Tonry:

Whoever wants what, however, must confront the antipodean twins of discretion

and disparity. Someone must in every case decide what to do. In most common

law jurisdictions, at least until recently, judges have been accorded great latitude

to decide what will happen to individual offenders who come before them. The

difficulty is that sentences sometimes reveal more about judges than offender,

just as book reviews sometimes reveal more about reviewers than about

books.143

Ashworth, in an earlier article, also made a similar point about the effect of leaving

judicial discretion in the hands of sentencers:

There can be little doubt that, in a system which leaves too much discretion to

sentencers, sentencing practice is influenced by each sentencer’s views about the

relative seriousness of offences, about the aims, effectiveness and relative

severity of each type of sentence, about the relative weight of mitigating factors,

about the causes of crime, and about the functions of the court in passing

sentence. There can be equally be little doubt that it is likely to be much easier

142 Kirby, “Judging: Reflections on the Moment of Decision” , above n 1, 53. See also Susan Philips, Ideology in the Language of Judges: How Judges Practice Law, Politics, and Courtroom Control, Oxford University Press, New York, 1998, chapter 2, “The Myth of the Trial Court Judge as Nonideological” .

143 Tonry, Sentencing Matters, above n 49, 177.

29

to bring about changes in sentencing practice if the interplay of these influences

is understood than if it is not.144

From the foregoing, it can be seen that continuing research into sentencing decision­

making is both valid and necessary in order to gain further insight into the operation of

the criminal justice system, and sentencing in particular. Particularly at this time with

the popularity of “ law and order” political agendas and restrictions on judicial

discretion, it is important to further understand the attitudes and perceptions of the

judges who are carrying out the sentencing function.

7 Sentencing decision-makingThe foregoing discussion has briefly touched on some of the changes occurring in

sentencing in the past 30 years, including the rise of influential and important

movements such as just deserts. Despite the intellectual engagement in the literature, it

is questionable how much of this permeates the thinking of judges and magistrates

undertaking the actual sentencing of offenders, and indeed how much influence the

scholarly debate has in the daily operation of the courts.145 This is one of the important

questions explored in this thesis.146

The way in which sentencers go about the task, their philosophy, attitudes, beliefs and

knowledge are all important to an understanding of the sentencing process.147 By the

introduction of specific sentencing legislation, Australian parliaments, which could be

said to have been led by the Victorian parliament’s introduction of the Sentencing Act

1991 (Vic), have in recent times increasingly regulated the sentencing process. How

judges have interpreted such guidelines and how these have informed their sentencing is

Andrew Ashworth, “Influences on the Creation of Criminal Law and Criminal Policy in England” (1984) 13 Anglo-American Law Review 1, 10.

See eg, Freiberg and Ross, above n 55, 202, where it is noted that despite the downfall ofrehabilitation in the literature, this had “little impact amongst the judiciary, many of whom remained happily oblivious to this criminological fashion” .This is particularly examined in chapter 6.

30

an important question for legislators, participants in the sentencing process, and

sentencing scholars.

Justice Michael Kirby, now a member of the High Court of Australia, is one of the best148known and most highly respected members of the Australian judiciary, and is well

published in the area of judges and judging.149 He notes that there is little research on

judicial reasoning and decision-making which goes beyond that contained in formal

published reasons.150 He goes on to say that,

Judges are reticent because bound by convention to leave their inner thoughts to

the words written in their published opinions. Yet it is impossible to give all of

one’s reasons in the manageable space available for published reports.151

Comparatively little research has been undertaken into judicial methodology in

sentencing in comparison with other aspects of the process, when such information

would clearly be of significant benefit to sentencing research. According to Ashworth:

Research into why judges and magistrates do what they do has long been

advocated as a prerequisite of the successful development of sentencing policy,

but sentencers in many countries seem to resist research. Apart from the irony

that judges sometimes berate academics for not understanding practice when it is

the judges who bar the way to research by means of observation and interview,

the social importance of sentencing is a powerful argument in favour of careful

research. More ought to be known about the motivation of judges and

Andrew Ashworth et al, Sentencing in the Crown Court: Report of an Exploratory Study, Occasional Paper no 10, Centre for Criminological Research, University of Oxford, Oxford, 1984, 2.Justice Kirby was appointed to the High Court of Australia in 1996 having previously been held the position of President of the New South Wales Court of Appeal (1984-1996), and before that was a justice of the Federal Court of Australia from 1983-1984: http://www.hcourt.gov.au/.See eg, recent articles: Justice Michael Kirby, “Attacks on Judges - A Universal Phenomenon” (1998) 72 Australian Law Journal 599; Kirby, “Judging: Reflections on the Moment of Decision” , above n 1; Justice Michael Kirby, “Judicial Stress” (1995) 13 Australian Bar Review 101; Justice Michael Kirby, “Reasons for Judgment: ‘Always Permissible, Usually Desirable and Often Obligatory’11 (1994) 12 Australian Bar Review 121.Kirby, “Judging: Reflections on the Moment of Decision” , above n 1, 37.Ibid.151

31

magistrates. Such knowledge would assist in the formation of sentencing policy,

and it might also help to extend a form of accountability into this sphere of

public decision-making. No doubt research of this kind will be perceived as a

threat and may be resisted on this account. This has led some criminologists to

advocate the “Trojan Horse” approach of offering to assist the judiciary through

research rather than propose an enquiry into their methods of working, but it

seems to me that the public policy arguments for research must be confronted.1 S9

They are surely overwhelming.

Perhaps therefore not surprisingly, few studies of judicial perceptions of the sentencing

process and judicial methodology have been undertaken. The most insightful however,

and the one most relevant to the present research, was a study conducted in 1981 in the

United Kingdom. This research, conducted by a team led by Andrew Ashworth (now

one of the leading international sentencing scholars), was in fact never completed,

thereby illustrating the difficulties encountered by this type of rsearch.

The Crown Court study involved a pilot study of sentencing in the Crown Court in

England based on interviews with 25 judges, court observations, and analysis of 96

cases. The aims of the project were to “reflect the realities of Crown Court

sentencing and the system within which it takes a place, and to explore the reasons why

judges approach sentencing as they do” .154 Significantly, after the pilot study was

completed and a short report presented, permission to proceed further with the study

was withheld by the Lord Chief Justice, and the study itself was never undertaken.155

The pilot study however confirmed the usefulness of research intended to provide an

accurate account of judicial approaches to sentencing in order to inform public debate,

and to assist in the development of sentencing policy.156 The pilot study also confirmed

Ashworth, “Reflections on the Role of the Sentencing Scholar” , above n 4, 263-4. Ashworth and other sentencing scholars have been calling for such research for many years now: Andrew Ashworth, “Influences on the Creation of Criminal Law and Criminal Policy in England” (1984) 13 Anglo-American Law Review 1, 10.Crown Court Study, above n 147. This research is referred to throughout this thesis as “the Crown Court Study” .Ibid 5.Ibid 5.Ibid 60.

152

153

154

155

156

32

that Crown Court judges would reject perceived interference into a wide sentencing

discretion; that judges regarded sentencing as an art not a science; and that they thought

it inappropriate to give detailed reasons and that such reasons that were given were a

general reference to factors taken into account, rather than an explanation of how those

factors were weighed up to achieve the sentence.157 * The results of this research are

discussed further in subsequent chapters analysing the results of the present study,

particularly in order to draw comparisons between the results of each piece of research.

As will be seen, the conclusions from that study and the present one are remarkably

similar, despite geographical distance and cultural difference, and the passage of 17

years.

Due no doubt largely to the difficulties in getting permission to conduct such a study, it

appears that to date there has been no similar interview-based analysis of judges and

sentencing decision-making, with the same objectives, attempted in the United

Kingdom or Australia. There has been however, a number of other studies, the most

relevant of which are noted below.

One of the earliest (and probably most comprehensive) studies of judicial methodology1 SR

in sentencing was carried out by John Hogarth in Canada, and published in 1971.

The research was “directed towards formulating generalisations about observed

regularities in behaviour” .159 Three principal questions were asked; about the meaning

of sentencing to each judge, any common patterns, and the meaning of sentencing to the

researcher as a student of the process.160 Hogarth’ s research remains of interest and

importance because of its depth and relative rarity, and has been used to inform later

studies.161 It is also relevant to note that the questions posed by Hogarth162 are

substantially the same as those posed by the current study, almost thirty years later, and

although criminological fashions and sentencing practices have changed, fundamental

Ibid.Hogarth, above n 7.Ibid x.Ibid.See eg, Peter McCormick and Ian Greene, Judges and Judging , James Lorimer and Company, Toronto, 1990, discussed below and analysed in chapter 4.See Hogarth, above n 7, chapter 1.

157

158

159

160

161

162

33

questions of disparity remain (at least in jurisdictions where a wide discretion has been1 fi'lt

retained in the hands of the judges).

Ralph Henham conducted a similar study of magistrates’ sentencing behaviour in the

United Kingdom in a study commencing in 1981.164 The stated aim of the research was

to examine the role of sentencing decisions by the Court of Appeal in magistrates’

sentencing behaviour.165 Again, although this study related to magistrates’ sentencing

in the United Kingdom,166 it is instructive, particularly as to its methodology and

conclusions. The methodology for the study is further discussed in chapter 3.

In the late 1970s and early 80s, Peter McCormick and Ian Green studied the Canadian

judicial system analysing judicial appointments and backgrounds, judges’ attitudes to

sentencing and their role in decision-making.167 The study analysed interviews with

judges in the provinces of Alberta and Ontario, as well as biographical data. It provides

telling insights into judicial attitudes which influence the decision-making process. The

results of this study are discussed and comparatively analysed in chapter 4.

A comprehensive judicial survey was conducted as part of the Australian Law Reform

Commission (ALRC) reference into sentencing which commenced in December 1978.

The study analysed the views of 350 judges and magistrates throughout Australia,

ascertained by way of questionnaire.168 The survey asked 50 questions and covered

These issues of disparity are introduced earlier in this chapter at part 6, and discussed in detail in chapter 5.Ralph Henham, Sentencing Principles and Magistrates’ Sentencing Behaviour, Avebury, Aldershot, 1990; see also earlier publications on this study: Ralph Henham, “The Influence of Sentencing Principles on Magistrates’ Sentencing Practices” (1986) 25 The Howard Journal 190; and Ralph Henham, “The Importance of Background Variables in Sentencing Behaviour” (1988) 15(2) Criminal Justice and Behaviour 255.Henham, Sentencing Principles and Magistrates’ Sentencing Behaviour, above n 164, 1.Also in relation to studies of sentencing by magistrates, see Roger Hood, Sentencing in the Magistrates’ Courts: A Study in Variations in Policy, Stevens, London, 1962; Roger Hood, Sentencing the Motoring Offender: A Study of Magistrates’ Views and Practices, Heinemann Educational, London, 1972; Keith Devlin, Sentencing Offenders in Magistrates’ Courts, Sweet and Maxwell, London, 1970; and Andreas Kapardis, Sentencing by English Magistrates as a Human Process, Asselia Press, Nicosia, Cyprus, 1985.McCormick and Greene, above n 161.Notably however the survey was criticised by the Victoria judiciary who, in the main, declined to participate; see Peter Cashman, Sentencing Reform: A National Survey of Judges and Magistrates: Preliminary Report, Law Foundation of New South Wales, Sydney, 1979, 305-309.

34

issues such as the need for sentencing reform, the need for greater uniformity in

sentencing, jurisdiction, the pre-trial process, the trial process, imprisonment, prison

conditions and parole, non-custodial alternatives, compensation for victims of crime,

corporal punishment, the death penalty, sentencing federal offenders and perceived

severity of sentencing. The personal profiles of the judges participating in the survey

were also ascertained.169 *

The data from this ALRC study of judges in the late 1970s remain of interest, although

decreasingly so as time goes by, as sentencing practices have substantially evolved over

the past two decades, both from the development of the common law in relation to

sentencing, and also as a result of substantial changes involving introduction of

sentencing legislation into nearly all Australian jurisdictions. Although only three

Australian jurisdictions, Victoria, Queensland, and the Northern Territory, have

introduced what could be described as comprehensive and detailed sentencing

legislation, most of the other jurisdictions have introduced legislation which provides

at least some degree of direction in relation to sentencing.171 *

The Canadian Sentencing Commission, which reported in 1987, also conducted a

written survey of judges’ opinions on various issues. The Sentencing Commission s

report notes that many judges included thoughtful written comments in their responses,

which are examined throughout the report.173 Particularly of interest in the present

study are comments on the nature of the sentencing process, which are analysed in

chapter 4.

See generally ALRC 44, above n 15, appendix B at 345.Sentencing Act 1991 (Vic), Penalties and Sentences Act 1992 (Qld); Sentencing Act 1995 (NT).Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1995 (WA); Sentencing Act 1997 (Tas); Crimes Act 1914 (Cth), in particular s 16A. New South Wales has resisted detailedlegislation setting out sentencing principles, but legislated in 1999 on administrative and procedural aspects of the process: see Crimes (Sentencing Procedure) Act 1999 (NSW); Crimes (Administration of Sentences) Act 1999 (NSW); and Crimes Legislation Amendment (Sentencing) Act 1999 (NSW).Canadian Sentencing Commission Report, above n 18.Ibid 281.173

35

Victorian criminologist Austin Lovegrove has published two monographs and a number

of articles reporting the results of an extended quantitative study of Victorian judges.174 *

The goals of the study were first to present a decision strategy, defined as a body of

principle consisting of working rules, and the second to develop “a prototypal numerical

guideline” . The aim was then to produce a “decision structure or framework in the

form of a comprehensive sentencing guideline comprising written policy statements and

a numerical decision aid for the application of that principle to the sentencing of the

multiple offender.” 176 Lovegrove’s work on guidelines, discretion and disparity is

discussed further in chapter 5.

Judicial education has been a theme of some studies, such as that by Livingston

Armytage in New South Wales, who examined amongst other things, competence, the

need for judicial education, judicial selection, and professional development and

education forjudges.177 This study is further discussed in chapter 4.

In terms of studies of judges from the perspective of other disciplines, there has been a

recent study of judicial behaviour on guilty pleas in the United States by Susan

Phillips, a linguistic anthropologist interested in the use of language in the courtroom,

who undertook an analysis of judicial discourse.

Austin Lovegrove, Judicial Decision Making, Sentencing Policy, and Numerical Guidance, Springer-Verlag, New York, 1989; Austin Lovegrove, The Framework of Judicial Sentencing: A Study in Legal Decision Making, Cambridge University Press, Melbourne, 1997. See also Austin Lovegrove, “An Empirical Study of Sentencing Disparity Among Judges in an Australian Criminal Court” (1984) 33 International Review of Applied Psychology 161; Austin Lovegrove, “Sentencing Guidance and Judicial Training in Australia” in Colin Munro and Martin Wasik (eds), Sentencing, Judicial Discretion and Training, Sweet and Maxwell, London, 1992; Austin Lovegrove, “Structuring the Judicial Sentencing Discretion: Some Empirical Considerations on Reforms” in Andros Kapardis (ed), Sentencing: Some Key Issues, La Trobe University Press (special issue of Law in Context vol 13(2) 1995), Melbourne, 1995; Austin Lovegrove, “Sentencing the Multiple Offender: Towards Detailed Sentencing Statistics for Armed Robbers” (1998) 31 The Australian and New Zealand Journal of Criminology ; Austin Lovegrove, “Judicial Sentencing Policy, Criminological Expertise and Public Opinion” (1998) 31 The Australian and New Zealand Journal of Criminology 287.Austin Lovegrove, The Framework of Judicial Sentencing: A Study in Legal Decision Making, Cambridge University Press, Melbourne, 1997, 1-2.Ibid 2.Livingston Armytage, Educating Judges: Towards a New Model of Continuing Judicial Learning, Kluwer Law International, The Hague, 1996.Philips, above n 142.178

36

Some other studies of judicial decision-making in sentencing were examined by

Andreas Kapardis in a psycho-legal review of a number of studies which have been

undertaken into various aspects of sentencing. Most of these were observational

studies, simulations and the like, however the concentration was on studies ofi orv

sentencers and the importance of extra-legal factors. Kapardis concluded that a wide

sentencing discretion is a major contributing factor to disparities and that there are a

number of factors in such disparity, among them the attractiveness of the defendant and

race;181 and thus “ legal and extra-legal factors impact on sentencing and contribute to

disparities” .182 *

This brief review of previous studies of judicial methodology and/or perceptions in

sentencing demonstrates the need for further study and analysis in this area to gain an

insight into judicial sentencing behaviour. As Ashworth states, “More ought to be1 87

known about the motivation of judges and magistrates.”

8 ConclusionThe context for this study of judicial methodology, perceptions and attitudes in

sentencing at the close of the twentieth century and beginning of the twenty-first, is at a

time of change and reassessment. As has been demonstrated, there has been very little

research exploring these sentencing issues, and only one such study on sentencing in a

similar jurisdiction which attempted to gain detailed information on this topic using

interview methodology.184 The voices of those who actually sentence offenders are

rarely heard, despite the fact that they have much to add to the knowledge and debate in

the area.

Kapardis, Psychology and Law: A Critical Introduction, above n 141, chapter 6: Sentencing as a Human Process.Ibid 170.In relation to race, see also Roger Hood, Race and Sentencing: A Study in the Crown Court: A Report for the Commission for Racial Equality, Clarendon Press, Oxford, 1992.

Kapardis, Psychology and Law: A Critical Introduction, above n 141, 170-171. Disparity is further considered in chapter 5.Ashworth, “Reflections on the Role of the Sentencing Scholar” , above n 4. See also above n 152.Crown Court Study, above n 147.184

37

This research therefore has a two-fold purpose. First, to understand more fully the

judicial perspective on how sentencing decisions are made, and secondly to inform the

debate on the sentencing process. It also gives judges a voice, and an opportunity for

others to hear their personal opinions on contentious issues in sentencing, such as

mandatory penalties, sentencing aims, the role of public opinion, and so on. This

research goes toward answering the questions of how judges approach the task of

applying the law; and what is their attitude in relation to that task?

The interview responses are critically analysed, together with the literature, findings

from previous studies and case law (where applicable), in order to draw out conclusions

on judicial perceptions, knowledge and attitudes towards sentencing. The interview

responses discussed in the ensuing chapters do not however give all the answers to the

above questions. Limitations of the interview process, restrictions on the depth of the

research, and limited time available for interviews, mean that this research is but

another piece in the puzzle. This study does however give a valuable and unique insight

into the minds of the judges who are applying the law and sentencing offenders; one of

the most difficult tasks that they are called upon to do. The answers are frank, and

sometimes provocative and unexpected. Above all, they demonstrate that judges are

thoughtful, generally reflective as to their own practice, and at times have strong

opinions on contentious issues. In short, what is revealed is the human face of judging,

together with a unique insight into how judges go about making sentencing decisions.

Chapter 2

From prison hulks to Penalties and Sentences: the

development of sentencing law in Queensland

38

1 A brave new world: Queensland’s origins as a penal colonyO, wonder!How many goodly creatures are there here!How beauteous mankind is! O brave new world That has such people in’t!1

1.1 introduction

It has been said that studies of the history of punishment are rare, and that the evolution

of punishment can often be taken for granted.2 There are compelling arguments that an

examination of sentencing and punishment including a historical perspective allows a

more complete, and certainly richer contextual understanding of contemporary issues.3

William Shakespeare, The Tempest Act V, Scene i (Miranda). Miranda’s innocent and guileless words from The Tempest apply somewhat equally to the naivety of the British in establishing a prison colony in New South Wales. Based only on sketchy reports from the Cook expedition in 1770 which appeared to describe the conditions in Botany Bay as some sort of utopia, the land was complete with “noble savages” who were not perceived to offer much resistance. (This imagery is discussed in Jan Kociumbas, The Oxford History o f Australia Volume 2, 1770-1860: Possessions, Oxford University Press, Melbourne, 1992, 84-87). See generally C M H Clark, A History o f Australia Volume 1, Melbourne University Press, Melbourne, 1977, chapter 4, and discussion below.John Pratt, “Punishment and the Lessons from History” (1992) 25 The Australian and New Zealand Journal o f Criminology 97,97.P N Grabosky, “On the History of Punishment in Australian and New Zealand” (1991) 24 The Australian and New Zealand Journal o f Criminology 139; David Philips and Susanne Davies (eds), A Nation o f Rogues? Crime, Law and Punishment in Colonial Australia, Melbourne University Press, Melbourne, 1994, 2; Arie Freiberg and Stuart Ross, Sentencing Reform and Penal Change: The Victorian Experience, The Federation Press, Sydney, 1999, 199; and John Pratt, “Civilization and Punishment” (2000) 33 The Australian and New Zealand Journal o f Criminology 183. On the history of culture and civilization, see Norbert Elias, The Civilizing Process, Blackwell, London, 1939, 1994.

39

There are a number of studies of the history of crime and punishment in Australia,4 and

a rich literature on the history and analysis of punishment generally,5 which informs and

enriches further examination of such issues.

This chapter explores the background to sentencing in Queensland, tracing the socio­

political history of the State and the genesis of its criminal law. Queensland has a

relatively recent history of European settlement, having been explored and occupied by

British colonists in 1824.6 It became a State in its own right in 1859 upon separation

from New South Wales. Transportation, convicts and colonialism are a relatively recent

part of the State’s European history; and the harsh beginnings, echoed by the climate

and landscape, were significant in shaping the attitudes of the State’s inhabitants, the

political landscape and the law makers themselves.7 It is therefore useful to briefly

See eg, Peter N Grabosky, “Patterns of Criminology in New South Wales, 1788-1973” in Duncan Chappell and Paul Wilson (eds), The Australian Criminal Justice System, Butterworths, Sydney, 1977; Grabosky, above n 3; Philips and Davies, above n 3; David Neal, The Rule o f Law in a Penal Colony: Law and Power in Early New South Wales, Cambridge University Press, Melbourne, 1991; Mark Finnane, Punishment in Australian Society, Oxford University Press, Melbourne, 1997; John Braithwaite, “Crime in a Convict Republic” (2001) 64 Modern Law Review 11; and Freiberg and Ross, Sentencing Reform and Penal Change: The Victorian Experience, above n 3. Also from a gender perspective, see Judith Allen, Sex and Secrets: Crimes Involving Australian Women, Oxford University Press, Melbourne, 1990.See eg, Michel Foucault, Discipline and Punish: The Birth o f the Prison, Penguin Books, London, 1977; Michael Ignatieff, A Just Measure o f Pain: The Penitentiary in the Industrial Revolution, 1750-1850 , Macmillan, London, 1978; Pieter Spierenburg, The Spectacle o f Suffering: Executions and the Evolution o f Repression: From a Preindustrial Metropolis to the European Experience, Cambridge University Press, Cambridge, 1984; Pieter Spierenburg, The Prison Experience: Disciplinary Institutions and their Inmates in Early Modern Europe, Rutgers University Press, New Brunswick, 1991; Richard van Dtilmen, Theatre o f H orror: Crime and Punishment in Early Modern Germany, Polity Press, Cambridge, UK, 1990; John Pratt, “Emotive and Ostentatious Punishment” (2000) 2 Punishment and Society 417. See also Pratt, “Civilization and Punishment”, above n 3, which examines the history of punishment using Elias as its frame of reference (see Elias, above n 3); and also note similar analysis in David Garland, Punishment and M odern Society: A Study in Social Theory, Clarendon Press, Oxford, 1990.The contentious nature of terms such as “settlement” in Australia’s European history is acknowledged, and it is also noted that some commentators prefer descriptors such as “conquest” and “invasion”. The use of the term “settlement” is used sparingly throughout this chapter to describe the factual arrival and occupation of the land by the British colonists, and is not in any way intended to deny the legitimacy of prior occupation of the land by the indigenous people. See in particular, Henry Reynolds, Frontier: Aborigines, Settler and Land, Allen & Unwin, St Leonards, 1996, chapter 1, “Unrecorded Battlefields”; and Henry Reynolds, Dispossession: Black Australians and White Invaders, 2nd ed, Allen & Unwin, St Leonards, 1989.See also John Pratt, “Punishment, History and Empire” (1991) 24 The Australian and New Zealand Journal o f Criminology 118 for a study of the influence of colonialism and empire on punishment in New Zealand.

40

explore these circumstances and consider the early history of Queensland as it relates to

criminal law, in order to understand, and put in their proper context, the events and

influences on sentencing law and practice.

The moves toward sentencing law reform in Queensland are examined here in the

context of reform initiatives and reviews of sentencing in Australia, primarily by the

Commonwealth and Victoria. The review by the Victorian Sentencing Committee is

particularly relevant as it led to the enactment of the Sentencing Act 1991 (Vic), on

which the Queensland Penalties and Sentences Act is at least partially based. Two other

recent important reviews of sentencing law, in Canada and New South Wales, are

briefly examined.

Each Australian jurisdiction is governed separately in relation to criminal law, with

some jurisdictions relying on a criminal code and others the common law.10 In

Queensland, the criminal law is codified in the Criminal Code of 1899. Sentencing

aims and purposes, factors to be taken into account, principles and sentencing options

are contained in the Penalties and Sentences Act 1992 (Qld). The genesis and operation

of these laws are explored in this chapter.

See Australian Law Reform Commission, Interim Report into Sentencing Federal Offenders: Report no 15, Australian Government Publishing Service (ALRC 15), Canberra, 1980; Australian Law Reform Commission, Sentencing: Report No 44, Australian Government Publishing Service (ALRC 44), Canberra, 1988.See Victorian Sentencing Committee, Sentencing: Report o f the Victorian Sentencing Committee, Attorney-General’s Department, Victoria, Melbourne, 1988.Western Australia adopted the Queensland (Griffith) Code in 1913, although subsequently both Codes have undergone separate amendment. Tasmania and the Northern Territory also have criminal codes, but these are not based on the Queensland Griffith Code, although they were influenced by it. New South Wales, Victoria and South Australia, the so called common law States, have criminal laws regulated by statute and common law. The Crimes Act 1914 (Cth) deals with federal offences. In 1990, the Standing Committee of Attorneys-General formed what is now known as the Model Criminal Code Officers Committee, with a view to developing a national Criminal Code. Draft chapters have been produced from time to time, and the Commonwealth passed a Criminal Code Act in March 1995. Queensland is no longer a part of this project. See also Matthew Goode, “Codification of Australian Criminal Law” (1992) 16 Criminal Law Journal 5.

41

1.2 The State of Queensland

Geographically, Queensland is the second largest State in Australia and covers an area

of 1 727 200 square kilometres, comprising 22.5% of the continent.11 The vast

distances covered by the State are illustrated by the fact that the greatest distance from

north to south is 2 100 km and from east to west is 1 450 km.12 The State is

decentralised and comparatively sparsely populated, with a population density of two

persons per square kilometre, which compares with 238 for the United Kingdom.13 The

majority of the Queensland population lives in the southern part of the State, with 77.5%

of the population living in that region in 1996.14 The capital city of Queensland is

Brisbane, which is situated in the south eastern comer. The population of Brisbane in

1996 was 1 291 117 (compared with 134 674 in 1901).15 The population of Queensland

as a whole was 3 374 000 in 1996 (by comparison, 453 000 people lived in the State in

1896).16 The climate of the State varies from subtropical to tropical on the eastern

seaboard, to hot and arid in the far southwest. High humidity occurs over a large area of

the State during the summer months, associated with the influence of the monsoonal

trough. In the northern and western regions of the State in particular, the temperatures

can be extremely high for months at a time.17

Because of the establishment of a British penal settlement in the State, the first

European immigrants to Queensland were largely from the United Kingdom and Ireland,

although in recent times there has been an increasing number from Asia and New1 o

Zealand. In 1891, 36.2% of the population was bom in the United Kingdom or

11

121314

15

16

17

18

Government Statistician’s Office, Queensland Past and Present: 100 Years o f Statistics 1896- 1996, Queensland Government, Brisbane, 1998, 23.Ibid.Ibid.Ibid 65.Ibid 69.Ibid 64.Ibid 31.Queensland Office of the Australian Bureau of Statistics, Queensland Year Book 1998, Australian Bureau of Statistics, Brisbane, 1998, 38.

42

Ireland.19 By the 1901 census, the figure had decreased to 25.1%, with 65.3% being

bom in Australia.20 Indigenous Australians were counted for the first time in that

census, with the official estimate of 6 670 persons including only those who were

“ civilised” .21 It was estimated at the time that there were in addition another 20 000

indigenous people living traditionally, who were not officially counted in the statistics.22

In 1996, 79 047 people identified themselves as being of Aboriginal descent, with 16

383 identifying as Torres Strait Islanders; a total of 95 430 persons.23 Indigenous

offenders from an Aboriginal or Torres Strait Islander background are dealt with in the

same courts as non-indigenous offenders when charged with criminal offences.24

Although Aboriginal and Torres Strait Islander offenders are not dealt with separately in

this study, it is noted in passing that in 1999 the total number of indigenous prisoners in

Queensland prisons was 1 107 out of a total prison population of 4 710, or 23.5%.25 In

1996, indigenous offenders made up 22.8% of the prison population in Queensland, or

805 prisoners out of the total prison population of 3 538.26 By comparison, in 1996,

Indigenous Australians comprised just 2.9 % of the Queensland population; 95 518 out

of a total population of 3 339 109.27 Offenders from an Aboriginal or Tomes Strait

19

20212223

24

25

26

51.8% of the population was also born in Australia by that time: Queensland Past and Present, above n 11, 78. These figures do not include Indigenous Australians who were not counted in population statistics at the time.Ibid.Ibid 76.Ibid.Ibid 77.In Queensland, legislative provisions for consulting with indigenous communities when sentencing indigenous offenders were not introduced into Parliament until mid 2000: see Penalties and Sentences and Other Acts Amendment Act 2000, which came into operation on 27 October 2000. See also R v Mara [1999] QCA 308, in which the Queensland Court of Appeal considered the reception of evidence from the offender’s indigenous community, on attitudes to the person’s sentencing. The Act was based on issues raised in this case.Australian Bureau of Statistics, Prisoners in Australia 1999, Canberra, 1999, 63; for Australia as a whole, the number of indigenous prisoners in 1999 was 4 307 out of a total of 21 538 prisoners, or 20%.Queensland Past and Present, above n 11, 338.Queensland Year Book 1998, above n 18, 36-40.27

43

Islander cultural heritage have consistently represented a proportion of the prison

population far in excess of their proportion of the general population.

1.3 From Terra Australis to Terra Nullius

From at least the thirteenth century, hundreds of years before the arrival of Captain

Cook in 1770 and his claim of what is now Australia for the British Crown, a mythical

fifth continent called Terra Australis Incognita (the unknown Southland) was believed

by Europeans to exist.29 It was not until 1606 however that the first known European

sightings of land were documented; by the Dutch in Cape York, and a Spanish ship

from the Quiros expedition,31 led by Captain Torres, in what is now known as the Torres

See comment in Russell Hogg, “Penality and Modes o f Regulating Indigenous Peoples in Australia” (2001) 3 Punishment and Society (forthcoming); extracted in Brown, et al, Criminal Laws (3rd ed) at 1464-7; Roderic Broadhurst, “Aborigines and Crime in Australia” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 21, The University o f Chicago Press, Chicago, 1997; and William Tyler, “ Aboriginal Criminology and the Postmodern Condition: From Anomie to Anomaly” (1999) 32 The Australian and New Zealand Journal o f Criminology 209; and for a recent analysis o f the problem of Aboriginal deaths in custody, see Richard Harding, “Prisons are the Problem: A Re-Examination o f Aboriginal and Non-Aboriginal Deaths in Custody” (1999) 32 The Australian and New Zealand Journal o f Criminology 108. Sentencing o f indigenous offenders and their relationship with the criminal justice system is outside the scope o f this study; see references on this topic in chapter 1, part 3. In relation to the criminal justice system generally, see Chris Cunneen (ed), Aboriginal Perspectives on Criminal Justice, The Institute o f Criminology, Sydney University Law School, Sydney, 1992; and Russell Hogg and David Brown, Rethinking Law and Order, Pluto Press, Annandale, 1998, 68-73. On the high levels o f violence and crime in indigenous communities and its consequences, see Ross Homel, Robyn Lincoln and Bruce Herd, “Risk and Resilience: Crime and Violence Prevention in Aboriginal Communities” (1999) 32 The Australian and New Zealand Journal o f Criminology 182, and a study o f violence in a remote Queensland community, Paul Wilson, Black Death, White Hands, Allen & Unwin, Sydney, 1985.

John Kenny, Before the First Fleet: Europeans in Australia 1606-1777, Kangaroo Press, Kenthurst, 1995, 12. In fact, speculation as to the existence o f a southern continent can be traced back to Pythagoras, but it was not until the twelfth and thirteenth centuries that there was a revival o f interest in the ancients, and thus a renewal o f interest in the existence o f Terra Australis. See generally, William Eisler, The Furthest Shore: Images o f Terra Australis from the Middle A ges to Captain Cook, Cambridge University Press, Cambridge, 1995, chapter 2.

The ship the Duyfken, commanded by Willem Jansz, is said to be the first European expedition to Australia, landing at the mouth o f the Pennefather River in Far North Queensland in March 1606. See generally Eisler, above n 29, 68-73. The landing was re-enacted in August 2000 with a replica o f the original ship, and the ship is presently on a re-enactment voyage to Holland following the spice routes, due to arrive in mid 2002: see http://www.duyfken.com.

Pedro Fernandez de Quiros commanded a Spanish expedition to find the great Southland, but instead discovered what is now Vanuatu, a group o f Islands in the Pacific Ocean to the east o f the continent o f Australia. One o f the captains in the fleet, Luis Vaez de Torres, separated from Quiros to sail to the Philippines, but instead came upon the Torres Strait which lies between

4 4

Strait.32 There were 21 recorded landfalls from 1616 - 1644; mainly on the western

coast of the continent, by accidental discovery or shipwreck.33 By 1644 the continent, or

what was known of it, was called New Holland by the Dutch East India Company (the

VOC), which controlled much of the trade in the East Indies, the region of Indonesia.34

The land was known by that name until displaced by the name “Australia” in the

nineteenth century.35

The eighteenth century was a period of European discovery and colonial expansion, and

it was in this context that the British Admiralty commissioned a voyage of discovery to

the South Seas, led by Lieutenant (later Captain) James Cook in the Endeavour. This

voyage included an expedition to Tahiti to observe the transit of Venus across the sun in

June 1769. After sailing to New Zealand (which was already known to the Europeans),

Cook located the East Coast of Australia in April 1770, and spent four months charting

the coastline.37 This period of time included approximately one week in early May in an

area he named Botany Bay, just south of the present Sydney business district.38 In

August 1770, Cook reached the northern tip of Cape York, and being satisfied that it

was separate from New Guinea and that they were the first Europeans in that region,

claimed the eastern coast for the British, in the name of King George HI.39 The eastern

part of the continent was then known as New South Wales, and the west, New

Holland.40 * 29

Cape York, the northern most tip o f Queensland, and Papua New Guinea. See Kenny, above n29, 15.

Ibid 13-14. Both o f these were o ff the coast o f Queensland, in the far North East o f the continent.

Ibid 16.

Ibid 18.

Ibid.

Ibid 41-46. The observation o f the transit o f Venus was important to measure the earth’s distance from the sun, a measurement critical to navigation. See Robert Hughes, The Fatal Shore: A History o f the Transportation o f Convicts to Australia, Collins Harvill, London, 1987, 50-51.

Kenny above n 29, 46-47.

Ibid; Clark, above n 1, 49.

Clark, above n 1, 50.

Ibid.40

45

It was this brief visit which mainly informed the decision by the British to send convicts

to Botany Bay.41 The botanist Joseph Banks, also aboard the 1770 expedition, told a

House of Commons Committee, set up in 1779 to investigate transportation, that the

land was highly suitable for settlement42 He stated that there would be little probability

of opposition from the natives, and that the land was well suited to settlement with

plenty of water, timber and fuel.43 The concept was also shrouded in romantic notions

of the New World, and of

a grander vision of Botany Bay as a settlement which would enhance the

comforts and add to the lights of polished society, as well as its own still

uncivilized possessors, and tend to the general happiness of mankind and the

glory of that Being whose providence had reserved their discovery to the present44generation.

The First Fleet of eleven ships, commanded by Captain Arthur Phillip, left Portsmouth

on 13 May 1787, and arrived at Botany Bay eight months later on 18 January 1788 45

Disappointed with what they saw, and being unable to find the “fine meadows”

described by Captain Cook,46 they explored further and were to discover the “finest

harbour in the world” 47 choosing the cove with the best supply of water, and naming it

Sydney Cove,48 after Lord Sydney who was overseeing the expedition 49 The remainder

41

42

43

44

45

46

47

Clark, above n 1, chapter 4, especially 69. There were a number o f proposals put forward over time for establishing colonies in the South Seas, detailed in George Mackaness, Some Proposals for Establishing Colonies in the South Seas, Review Publications Pty Ltd, Dubbo, 1976.

Clark, above n 1, 62.

Ibid.

Ibid 70, citing Anonymous, History of New Holland, from its first discovery in 1616 to the present time, 1787.

Ibid 81-86. See also Jonathan King, The First Fleet: The Convict Voyage that Founded Australia 1787-88, Macmillan, Melbourne, 1982, for an account o f the journey, based on contemporary and diary records.

Ibid 86.

Ibid, quoting from Governor Phillip. This is now known as Sydney Harbour.

Ibid.48

4 6

of the fleet sailed from Botany Bay to Sydney Cove, arriving on 26 January, a date later

to be celebrated as Australia Day.50 In total, 736 convicts, 548 men and 188 women,

were transported in the First Fleet, the majority having committed property offences.51

Thus occurred the arrival of the Europeans to the colony, and the establishment of New

South Wales, and later Australia. The Second Fleet arrived in June 1790, having

suffered terrible loss of life on the long sea journey to Australia.52 The colonists who

had arrived in 1788 nearly starved while waiting for fresh provisions to arrive, two and a

half years later.53

What the British rather conveniently ignored was that Australia had already been

“discovered” , (at least 50 000 years earlier),54 and was inhabited by indigenous people,

consisting of nomadic tribes with many different language groups.55 Little thought was

given to the effects of European arrival on these people.56 Local laws and customs of

the indigenous inhabitants of Australia, the Aboriginal and Torres Strait Islander

peoples, were not taken into account, and Australia was assumed, as a legal fiction, to

have no local law in existence in the territory, and to be “terra nullius” (territory

belonging to no-one).57 In fact, this was incorrect, but it was not until 200 years later

that the error was corrected and it was accepted that Indigenous Australians had a

Lord Sydney, formerly known as Thomas Townshend, was elevated to the peerage in 1783 and given the Home Office for his role in the treaty with America: Clark, above n 1, 68.

Ibid 86.

J A Sharpe, Judicial Punishment in England, Faber and Faber Limited, London, 1990, 55.

Michael Flynn, The Second Fleet: Britain’s Grim Convict Armada of 1790, Library o f Australian History, Sydney, 1993, chapter 8. The Captain o f one o f the ships and his chief mate were later tried and acquitted for murder o f the ship’s cook in a private prosecution, and were accused o f causing excessive mortality amongst the convicts on board the ship: see Flynn, chapter 9. O f the 1 026 convicts who had sailed from England on the Second Fleet, 267 died on the voyage, and 486 arrived sick and unfit for work: Clark, above n 1, 123.

Hughes, above n 36, chapter 4. This was despite the plentiful native food surrounding them and the expertise of the indigenous people, with whom they were living in close proximity.

Geoffrey Blainey, A Shorter History of Australia, William Heinemann Australia, Melbourne, 1994, 4.

As many as 250 different languages were estimated to have been spoken at the time o f white settlement: ibid 12.

Clark, above n 1, 72.

Mabo v Queensland [No 2] (1992) 175 CLR 1, 32-38 (Brennan J).

4 7

system of law, and it was not until 1992 that terra nullius was exposed as a fallacious

concept in relation to Indigenous Australians.58 It was also not until 2000 that

legislation was introduced in Queensland to take account of the attitudes of indigenous

communities to sentencing offenders.59

As a “ settled” colony,60 the settlers brought the common law of Britain with them,61

adjusted in accordance with the principle that only so much of it was introduced as was

reasonably applicable to the circumstances of the colony.62 According to Brennan J in

Mabo: “The indigenous people of a settled colony were thus taken to be without laws,

without a sovereign and primitive in their social organisation” .63 It was not until the

decision in Mabo, 204 years after the European arrival in 1788, that the High Court of

Australia recognised the absurdity of this notion 64 In the words of Brennan J (later the

Chief Justice of the High Court): “The facts as we know them today do not fit the

See Mabo (ibid); also Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, at 267 (Blackburn J). See also B A Keon-Cohen, “The Mabo Litigation: A Personal and Procedural Account” (2000) 24 Melbourne University Law Review 893; Stanley Yeo, “Native Criminal Jurisdiction After Mabo” (1994) 6 Current Issues in Criminal Justice 9; and generally, Henry Reynolds, The Law of the Land, Penguin, Ringwood, 1992. C f however the rejection by the High Court o f a submission that pre-existing Aboriginal criminal law should be recognised and applied to Aboriginal people: see Walker v New South Wales (1994) 182 CLR 45, 48 (Mason CJ).

See s 9(2)(o) Penalties and Sentences Act 1992 (inserted October 2000), recognising the decision o f the Queensland Court o f Appeal in R v Mara [1999] QCA 308 that indigenous community attitudes should be heard and taken into account. That case also added the rider that the community input “should not influence the determination o f the question whether the (offender) should serve time in gaol” : at para 15 per McMurdo P and Thomas JA. Section 9(2)(o) also allows the court to take into account cultural considerations. This limited acknowledgment o f the role o f their communities in the sentencing o f indigenous persons is the only legislative concession made in Queensland to the sentencing o f indigenous people coming before the courts as offenders. The Queensland courts have been prepared to acknowledge that differing circumstances may exist for indigenous offenders, but this has occurred in very few cases only, see eg, R v Daniel [1988] 1 Qd R 499.

As opposed to cases o f cession and conquest where the pre-existing laws of the territory were presumed to be preserved, but the Crown could subsequently legislate: see Mabo, above n 57, 32(Brennan J); 77-79 (Deane and Gaudron JJ).

For an overview o f the development o f the common law, and its reception in Australia, see James Crawford, Australian Courts of Law, Oxford University Press, Melbourne, 1993, chapter 2. Foranalysis o f Brennan J’s discussion o f the common law in Mabo, see Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia, Cambridge University Press, Melbourne, 2000, 120-124, and chapter 5 generally.

Mabo, above n 57, 37-38 (Brennan J), 79 (Deane and Gaudron JJ).

Ibid 36 (Brennan J).63

4 8

‘absence of law’ or ‘barbarian’ theory underpinning the colonial reception of the

common law of England.”65 In fact, the Aboriginal and Torres Strait Islander cultures

were subsequently found to have a well-developed system of customary law.66 * *

It goes almost without saying that the arrival of uninvited and unwanted Europeans to

a country previously exclusively inhabited by indigenous people caused irrevocableZTQ

changes to the way of life of the original inhabitants. In an account of the history of

early Brisbane, a member of the pioneering Petrie family documented the early impact

of the Europeans on indigenous communities in the Brisbane area.69 Other studies have

For analysis o f this decision and the other major native title case, Wik Peoples v Queensland (1996) 187 CLR 1, see Patapan, above n 61, chapter 5.

Mabo, above n 57, 39 (Brennan J). It is noted however that although Mabo addressed the issue o f land rights, the decision left a number o f legal/political issues still to be addressed. See eg discussion in Garth Nettheim, ‘“ The Consent o f the Natives’ : Mabo and Indigenous Political Rights” (1993) 15 Sydney Law Review 223.

See generally, Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Australian Law Reform Commission (ALRC 31), Canberra, 1986; Australian Law Reform Commission, Aboriginal Customary Law - The Criminal Law, Evidence and Procedure, Australian Law Reform Commission (ALRC DP 20), Canberra, 1984; New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders (Report No 96), Law Reform Commission Publications, Sydney, 2000, chapter 3; James Crawford, “ International Law and the Recognition o f Aboriginal Customary Laws” in Barbara Hocking (ed), International Law and Aboriginal Human Rights, Law Book Company Limited, Sydney, 1988; H A Amankwah, “Post- Mabo: The Prospect of the Recognition o f a Regime o f Customary (Indigenous) Law in Australia” (1994) 18 University of Queensland Law Journal 15; John McKenzie, “Recognition o f Aboriginal Customary Law” [1993] Law Society Journal 37; Ken Brown, “Paper Promises?” (1999) 24 Alternative Law Journal 221; Paul Ban, “Slow Progress: The Legal Recognition of Torres Strait Islander Customary Adoption Practice” (1997) 4(7) Indigenous Law Bulletin 11; James Crawford, “The Recognition o f Aboriginal Customary Laws: An Overview” in Chris Cunneen (ed), Aboriginal Perspectives on Criminal Justice, Institute o f Criminology, Sydney Law School, Sydney, 1992. In relation to sentencing and customary law, see George Zdenkowski, “Customary Punishment and Pragmatism: R v Wilson Jagamara Walker'’’ (1994) 68 Aboriginal Law Bulletin 26, discussion in David Brown et al, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, 3rd ed, The Federation Press, Sydney, 2001, at 12.2.6 and references on sentencing indigenous offenders generally in chapter 1 (above) at part 3.

The tribespeople were said to have shouted “warra, warral” to the Europeans, meaning, “Go away!” : Hughes, above n 36, 84.

See also Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia, Penguin Books, Ringwood, 1990; Reynolds, Frontier: Aborigines, Settler and Land, above n 6; and Reynolds, Dispossession: Black Australians and White Invaders, above n 6.

Constance Campbell Petrie, Tom Petrie’s Reminiscences of Early Queensland, University o f Queensland Press, St Lucia, 1992 (first published 1904).

4 9

been published documenting the profound changes to indigenous communities brought

by the European settlers.70

1.4 Bound for Botany Bay

The British thus established the Colony of New South Wales in 1788 as a penal

settlement for British convicts who had been sentenced to transportation. It was a mode

of punishment that resulted in extreme isolation of the convict from friends and family.

Transportation was also seen as a solution to overcrowded prisoner accommodation in

the home country, as well as a form of indentured labour for the colonial outpost. The

history of Australia is inextricably linked with convicts and the criminal law; for

without the urgent need for more prisoner accommodation in Great Britain, the First

Fleet of ships would not have sailed for Botany Bay in 1787, and occupation of the land

by Europeans would not have occurred in the way it did.

The transportation of British prisoners to the colonies had its origins in a period of

British criminal law known as the Bloody Code, referring to the period 1688-1815.71

During that time, the number of offences attracting the death penalty numbered

approximately 225, the gallows being seen as a preferred deterrent for crime.72 In the

words of one writer on the period: “The rulers of eighteenth century England cherished

the death sentence” .73 As is often the case throughout history, society during this time

was seen as lawless, and the severity of the Bloody Code perceived to be necessary “by

the egregious wickedness of the age” .74 Property offences in particular were perceived to

be endemic, however offenders stealing out of need and deprivation committed many of

See eg, Richard Baker, Land is Life: From Bush to Town - the Story of the Yanyuwa People, Allen and Unwin, St Leonards, NSW, 1999, which describes in detail the changes brought to the Yanyuwa people in the Northern Territory by European contact.

See Ignatieff, above n 5, 17; and Frank McLynn, Crime and Punishment in Eighteenth-Century England, Routledge, London, 1989, xi.

Ibid.

Douglas Hay, “Property, Authority and the Criminal Law” in Douglas Hay, Peter Linebaugh, John Rule, E P Thompson and Cal Winslow (eds), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, Pantheon Books, New York, 1975, 17.

McLynn, above n 71, xii, citing Lord Chancellor Harwicke.

70

71

72

73

74

50

nc n/:these offences. The punishment for burglary was the death penalty, the influence of

which can still be seen today in the Queensland Crim inal Code, which continues to have

a maximum penalty of life imprisonment for that crime.77

Exactly why transportation developed as a method of punishment is complex, but the

evolution of punishment methods needs to be examined in the context of their social,

cultural and political context.78 With the harsh punishment regime in place at the time,

a suitable alternative to the death penalty had to be found, as not all offenders convicted

of criminal offences could be hanged. Setting free offenders sentenced to death and

then pardoned was clearly not appropriate in many cases, and thus it was that

transportation was first formally suggested in a Bill in 1663.79

Although the death penalty was a popular punishment, half of all offenders sentenced to

hang for capital offences in the eighteenth century were said to have been pardoned and

given a secondary punishment.80 Michael Ignatieff puts the number who were pardoned

and sent to be transported at one third of offenders sentenced to death in the 1750s.81 In

non-capital cases, the most common punishments consisted of whipping, fining, the

pillory, or transportation. The most significant secondary punishment was

Ibid 88-89. Much of the property crime in the first half o f the nineteenth century was also subsistence crime committed by people stealing to support their families: see Paul Maxim, “An Ecological Analysis o f Crime in Early Victorian England” (1989) 28 The Howard Journal 37, 46-47.

McLynn, above n 71, 287. Evidence indicated however that juries would attempt to ameliorate the harshness o f this penalty by finding the offender guilty o f stealing only; or in a stealing case find the offender guilty o f stealing 39 shillings only, as stealing 40 shillings was a capital offence: see Wilfred Oldham, Britain’s Convicts to the Colonies, Library o f Australian History, Sydney, 1990, 11.

Sections 419(2), (3) and (4) Criminal Code (Qld).

J M Beattie, Crime and the Courts in England 1660-1800, Clarendon Press, Oxford, 1986, 470. As to the origins o f transportation, see generally 470-519.

Although this Bill was not passed, Beattie notes that transportation had in fact been imposed over the past 60 years, mainly as a condition o f a pardon: ibid 472.

McLynn, above n 71, 277. See also Hay, above n 73, 22-23.

Ignatieff, above n 5, 18.

See generally McLynn, above n 71, chapter 15. As to the punishments of whipping and the pillory generally, see Beattie, above n 78, 461-468.

51

transportation, a feature of British penal culture almost unique to that jurisdiction.83

Imprisonment was in fact rarely used as a punishment before 1775.84

Transportation was the practice of sending convicted criminals to the British colonies

with the primary purpose of punishing the criminal and providing a deterrent for others,

but with an added benefit, (for the State at least), of removing the felon from Britain,

and providing a cheap labour force for the colonies.85 Transportation was also seen by

some to be a rehabilitatory punishment,86 although the evidence suggests that little

reformation amongst the transported convicts occurred.87 The convict could be

transported for seven, ten or fourteen years, or for life.88

Some disadvantages with transportation as a punishment included that those transported

could be seen by others as better off than remaining at home in grinding poverty;89 “less

a punishment than an opportunity” .90 In terms of efficacy, there was also a high return

rate from America by convicts in the 1760s and 70s.91 Predictably too, there were social

problems caused by removing the family breadwinner, thereby creating a cycle of

poverty and offending behaviour, as well as ultimately depriving Britain of able-bodied

men required for military purposes.92

McLynn, above n 71, 285.

Ignatieff, above n 5, 15. See Sharpe, above n 51, 25, who notes that imprisonment was more commonly used at that time as a method o f holding persons prior to their trial, rather than as a sentencing disposition.

McLynn, above n 71, 287, 291; Sharpe, above n 51, 58-59.

McLynn, above n 71, 285.

Sharpe, above n 51, 59.

Ibid 57. These terms for transportation are still reflected in the expression o f many maximum penalties in the Criminal Code (Qld), see discussion later in this chapter at 1.10.

McLynn, above n 71, 290.

Finnane, above n 4, 6-7.

McLynn, above n 71, 290.

Ibid 291; Clark, above n 1,61.92

5 2

Transportation had another purpose; serving as a form of banishment where the convict

was not permitted to return to Britain during the term of the sentence.93 Their

involuntary exile was also said to be useful in removing them from the temptations of

crime at home.94 In the case of transportation to Australia, extreme isolation of the

colony and a lack of a practical and affordable means of return travel from such a

remote location, (particularly in the early days of settlement), meant that escaping back

to Britain would have been a virtual geographic impossibility; in fact return from

Australia by the convicts was probably not contemplated by the British authorities.95

Originally, transported convicts were sent to the American colonies, with an estimated

50 000 felons being sent to this destination between 1718 and 1775; transportation

having been revived in popularity by the British Transportation Act of 1718.96 * The

1718 Act provided that convicts be transported to America for seven years instead of

being whipped or burnt in the hand. For “non-clergyable” offences, the offender could

be transported for up to 14 years, and in capital offences, the sentence could be

commuted to transportation for life.98 A convicted person could escape the death

penalty by claiming the “benefit of clergy” , which originally meant that they would

claim ecclesiastical privilege, thereby escaping punishment through proving literacy by

It is interesting to note that Canada used a system o f banishment as a form of exile in lieu of transportation. Sentences for banishment were similar to transportation; normally seven and 14 years. In contrast with the popularity o f transportation, banishment was an infrequently used punishment in Canada: Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987, 24.

Clark, above n 1, 66.

J F Nagle, Collins, the Courts and the Colonies, University o f New South Wales Press, Sydney, 1996, 63. Nagle also cites Bentham as stating that transportation may have been thought o f as a lenient punishment, but in fact once transported to New South Wales; it became like a capital punishment.

Finnane, above n 4, 1. This figure differs; according to Clark, between 1717 and 1776, 30 000 convicts were sent to America from England and Scotland, and 10 000 from Ireland: Clark, above n 1, 61. See also Sharpe, above n 51, 43-44. For a detailed examination o f convict transportation to America, see Oldham, above n 76, chapters 1 and 2.

McLynn, above n 71, 286. The punishment of being burnt in the hand was abolished in 1779: Beattie, above n 78, 89.

McLynn, above n 71, 286.

53

means of reciting a passage of Scripture." The literacy test was abolished in 1706.100

New capital offences created in this period were “non-clergyable” meaning that the

person could not claim the benefit of clergy.101

The British government was thus seen to be reacting to the perceived lawlessness of the

population by its tough response to crime, by having the availability of transportation as

a deterrent for cases where hanging was not appropriate.102 Despite this, the real reason

may have been that of overcrowding in the gaols.103

Transportation to America was an economical punishment system for Britain because

the system was privatised and the convicts sold to the colonists as indentured labour.104

The cessation of transportation to America had a number of causes, including the

outbreak of war in 1775,105 and the desire of the Americans for their country to be no

longer a dumping ground for British criminals.106 In addition, the American colonists

had by then acquired another source of indentured labour with the availability of African

slaves.107 This temporarily halted the practice, however the problem of an alternative

secondary punishment remained for Britain.108

99

100101102103

104

105

106

107

108

The original intention o f the test was that it be restricted to clergy, as they claimed only to be subject to the ecclesiastical courts. By the fourteenth century, the availability was widened with a literacy test, which allowed the prisoner to read a verse from Psalms, thus permitting the benefit of clergy to become a fiction, which alleviated the harshness o f the capital punishment system. See Beattie, above n 78, 141-146. The benefit o f clergy could only be claimed once, and to avoid a repetition, offenders were burnt in the hand. See Oldham, above n 76, 11.

5 Anne c 6. See generally Beattie, above n 78, 142.

See generally McLynn, above n 71, xi; Sharpe, above n 51, 40-41; and Ignatieff, above n 5, 18.

McLynn, above n 71, 287.

Nagle, above n 95, 13.

Convicts sent to America were sold to contractors who in turn sold them to plantation owners who acquired their labour for the duration o f the sentence: Clark, above n 1, 61. Initially a London merchant would be paid 3 pounds for every convict to be taken to America. The convict was then on-sold to the plantation owners for a minimum of 10 pounds: McLynn, above n 71, 286. See also Finnane, above n 4, 2.

McLynn, above n 71, 286.

Clark, above n 1, 60-61;

Sharpe, above n 51, 43; Braithwaite, above n 4, 17.

McLynn, above n 71, 291. There was an attempted resumption o f transportation to America in 1783-1785, see Oldham, above n 76, chapter 5, and a failed investigation o f an island in Gambia as a site for a convict settlement: see Oldham, chapter 6.

5 4

An Act was passed in 1776109 in an attempt to solve the punishment dilemma by the use

of confinement in prison hulks moored on the Thames, where the convicts served their

period of incarceration with hard labour by working on the river.110 This development,

called “one of the most unsavoury penal institutions ever employed in England” ,111 was

far from successful, having an alarming mortality rate112 and security problems,113 as

well as reportedly being unable to accommodate the number of prisoners required.114 An

attempt at reform, the Penitentiary Act of 1779,115 reduced sentences in the hulks to one

year, with the preamble to the Act specifically looking forward to the return of

transportation.116 * * It also recommended the construction of two penitentiaries, for males

and females, but the Act was never implemented, due to lack of agreement as to a

site. The use of prison hulks was not discontinued until 1857.

An urgent solution to the problem of prison overcrowding was necessary, and after

investigations by a Committee of the House of Commons set up in 1779, Lord Sydney

announced the resumption of transportation in 1786.119 The motive has been said by

16 Geo III, c 43. The Act provided that males convicted o f transportable offences, or those pardoned after receipt o f a sentence o f death, could be kept at hard labour on the hulks for a term o f not less than three years or greater than 10. See Oldham, above n 76, 35-36.

McLynn, above n 71, 291. See also Clark, above n l, 61; Oldham, above n 76, chapter 3 “The Hulks” .

Sharpe, above n 51, 52.

Diseases such as smallpox and typhus were prevalent in the hulks, and the conditions were so poor that in one period between August 1776 and March 1778, 176 out o f 632 convicts taken on board the hulks died: Oldham, above n 76, 40. Oldham notes however that the deaths may have been due in large measure to the condition o f the convicts on their arrival on the hulks from the prisons, which had high disease rates. It has been estimated however that one third o f prisoners in the hulks died in them: Sharpe, above n 51, 53.

McLynn, above n 71, 292.

Clark, above n 1, 61. Clark notes the prison reformer Howard as being the only witness (to an enquiry) to criticise the conditions on the hulks. Howard’ s life is described in detail in Ignatieff, above n 5, 47-79.

19 Geo III c 74.

McLynn, above n 71, 292.

Ibid 294. See also Oldham, above n 76, 51. The concept o f a penitentiary was popular at the time with the writings of Jeremy Bentham advocating the trial of such a concept. See also analysis in Foucault, above n 5.

Sharpe, above n 51, 52-53.

Clark, above n 1, 61-69.

55

some historians to be the alarming increase in crime,120 however some argue that the

crisis with the prison hulks was the sole reason, as opposed to the immediate catalyst.121

An uprising in the hulks in March 1786, which resulted in the shooting dead of eight

prisoners, no doubt hastened the decision.122 * Although the overcrowded prison hulks

moored on the Thames and the punishment regime of the Bloody Code were important

factors in the commencement of transportation to Australia, the furtherance of Empire

and a source of cheap labour were reasons for continuation of the practice.

Botany Bay, “discovered” by Captain James Cook in 1770 and not further explored by1 OT

Europeans since, " was chosen as the site for renewal of transportation; albeit

reluctantly because of the high costs and risks involved in the long sea journey.124 This

was despite no proper survey of the location being carried out, and the British having

virtually no knowledge of the Australian continent.125 Before deciding on the use of the

new acquisition of the Colony of New South Wales for this purpose, other uses had been

mooted, including the idea of somewhere to send the British underclass, before they

turned to crime; poetically described in one work as “prophylactic emigration” .126

During the period 1811 to 1836, transportation (to Australia) was the sentence in more

than one third of all sentences handed down at the assizes and sessions courts in

Ibid 69. This is a recurring theme in recent history for the escalation o f severity and the search for new punishment options - see discussion on law and order in chapter 7.

Kociumbas, above n 1, 11 (endnote 18), citing Ged Martin (ed), The Founding o f Australia: The Argument About Australia’s Origins, Hale and Iremonger, Sydney, 1978, which sets out the main arguments for the causes o f the resumption o f transportation. Kociumbas notes that the debate is “notable for a narrow empiricism and futile discussion o f the respectability o f minute scraps o f evidence” , and thereby obscures other issues. He argues that the analysis is better served by seeing the problems as primarily an economic issue and linked to the protection o f private property. See also analysis o f the contemporary records in Oldham, above n 76, 123-234.

Clark, above n 1, 67.

See generally Clark (ibid), chapter 3.

Ibid 293; Oldham, above n 76, chapter 8. The government was not the only reluctant party. Some convicts, sentenced to transportation, were said to have begged for the death penalty in lieu o f a long sea journey to an unknown continent from which they may never return, see Nagle, above n 95, 6.

Sharpe, above n 51, 54.

Hughes, above n 36, 61.

56

England.127 By the 1840s, transportation to New South Wales had ended, with Van

Diemen’s Land128 and Western Australia becoming replacement convict destinations;129

this period also seeing the rise of the penitentiary as a sentencing option in Britain.130 It

has been estimated that 160 000 convicts were shipped to Australia between 1787 and

1868, consisting of 78 000 to New South Wales,131 66 500 to Van Diemen’s Land, and

10 000 to Western Australia; with smaller numbers also sent to Norfolk Island, Moreton

Bay and Port Phillip.132 Of these, 25 000 were women.133

It has been said that the central importance of the convict background to Australian

society and its institutions is in stark contrast to the position in America, where it has

virtually been ignored.134 In Australia, particularly in New South Wales and

Queensland which were both originally settled as penal colonies, a realisation of the

consequences of the early convict history is crucial to an understanding of the later

development of the political and legal institutions of the State. In Queensland,

geographical isolation, pioneering origins and the rural environment of much of the

State have been influential in the development of the political ideology of the society.

By settling New South Wales with predominantly working class English and Irish

prisoners, the cultural die was cast (until the influx of post World War II immigration),

for the future socio-political development of the Colony of New South Wales, and later

the State of Queensland.

Finnane, above n 4, 7.

Now the State o f Tasmania.

Transportation to Van Diemen’s Land ceased in 1853, and Western Australia in 1868: Finnane, above n 4, 13.

Finnane, above n 4, 7-8. See also Sharpe, above n 51, 61-75. In relation to the growth o f prisons generally, see Ignatieff, above n 5; Foucault, above n 5; and George Zdenkowski and David Brown, The Prison Struggle: Changing Australia’s Penal System, Penguin Books, Ringwood, Vic, 1982, chapter 1 “The Birth o f the Prison” .

Including what is now the State o f Queensland.

Finnane, above n 4, 15. See also Sharpe, above n 51, 54-55.

Finnane, above n 4, 15.

Ibid 2.134

57

It was in any event this eighteenth century experiment in punishment which founded

Australia as a British Colony, and shaped the criminal law that exists today in Australia

and Queensland in particular. European population of the Colony of New South Wales

thus began with the arrival of the first fleet in 1788, and New South Wales had its start

as a reservoir for the lowest class of British citizen, the convict.

1.5 Moreton Bay

Banishment and prison overcrowding were also the reasons for the foundation of

another colony hundreds of miles to the north of the original settlement in New South

Wales. Moreton Bay, at the mouth of the Brisbane River, a district in the south-east of

what is now Queensland, was established as a penal settlement in 1824, as part of the

Colony of New South Wales. The site was originally surveyed for that purpose in 1823

by John Oxley, Surveyor General of New South Wales, on the instructions of the

Governor of New South Wales, Sir Thomas Brisbane, after whom the capital city of

Queensland was later named.135 Apart from Captain Cook who named the area, the first

European arrivals were shipwrecked convicts, Pamphlet, Parsons and Finnegan.136

Before European arrival, Queensland was populated by a number of Aboriginal tribes

who were ultimately dispossessed; their numbers severely depleted as a result of the

British settlement, both from introduced disease and lifestyle,137 and violence and

massacres by the white invaders.138 Paternalistic policies were later used in removing

indigenous children from their families in a misguided attempt at forced assimilation.139

See George Mackaness, The Discovery and Exploration of Moreton Bay and the Brisbane River (Part II), Review Publications Pty Ltd, Sydney, 1956 (reprinted 1979) for an account o f the early exploration by Oxley and details o f the indigenous tribes, based on contemporary records.

Ibid.

It was stated by one observer that the primary cause o f the excessive death rate among the Aboriginal people living on the site o f the city o f Brisbane (said in that work to be the Turrbal people) was the introduced lifestyle: Constance Campbell Petrie, Tom Petrie’s Reminiscences of Early Queensland, University of Queensland Press, St Lucia, 1992 (first published 1904), 5, 65. That account also notes the influence of Western diseases such as “consumption”on the death rate (at 65).

See Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Commonwealth o f Australia, Sydney, 1997, Part 2, Queensland, where it is noted that extreme violence accompanied the expansion o f the European settlers to the north, which

58

Moreton Bay was intended for use as a secondary penal settlement for convicts who had

reoffended at the main settlement in New South Wales,140 in the same manner as Port

Arthur in Tasmania and Norfolk Island.141 The settlement was first situated at Redcliffe

(just north of Brisbane), moving to the present site of the City of Brisbane in 1825.142

Moreton Bay was a closed penal settlement between 1824 and 1842, with more than

1 000 prisoners being sent there during that time.143 Free settlement began in 1842.144

The European population of Moreton Bay and surrounding districts in 1845 was 1 599

people.145

Exploration and development of the area commenced after free settlement, and in 1859,

Queensland was formally declared a separate colony.146 Upon separation from New

South Wales, Moreton Bay became part of the Colony, and later State, of Queensland,147

139

140

141

142

143

144

145

146

147

coupled with disease, resulted in a rapid decrease in the indigenous population. See also Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia, above n 68; Reynolds, Dispossession: Black Australians and White Invaders, above n 6.See Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Commonwealth of Australia, Sydney, 1997; and Chris Cunneen, “Criminology, Genocide and the Forced Removal o f Indigenous Children from their Families” (1999) 32 The Australian and New Zealand Journal of Criminology 124.

B H McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure, Butterworths, Sydney, 1989, 3.

Finnane, above n 4.

McPherson, above n 140, 2-3; Queensland Year Book 1998, above n 18, 2. Brisbane was not in fact declared the capital until separation in 1859, after disputed claims between it and two other centres, see Dushen Salecich, Brisbane, Ipswich or Cleveland: The Capital Port Question at Moreton Bay 1842-59, Brisbane History Group, Brisbane, 1987.

Queensland Past and Present, above n 11, 311. A proclamation in May 1840 brought the end of transportation to Moreton Bay, and in February 1842 it was no longer a penal settlement: see McPherson, above n 140, 6. McPherson notes that free settlers began arriving around 1840.

Queensland Past and Present, above n 11, 311. In the early days o f free settlement, transport between Sydney and Brisbane was largely by steamship, with a fortnightly service between the two being set up in 1842, see Ray Whitmore, “The First Brisbane Steamship Service 1841-45” in Brisbane History Group Papers No 6 (ed), People Places Pageantry, Brisbane History Group, Brisbane, 1987.

Queensland Year Book 1998, above n 18, 3. The population statistics did not include Indigenous Australians.

Letters Patent dated 6 June 1859, (1850) 1 QGG 1; 1 Pring 233.

The State was named in honour o f Queen Victoria.

59

and took up the area of eastern Australia which it has today, namely from a line just

south of the capital, Brisbane, west to the border with South Australia, and to the far

north of the continent at Cape York. At the time of separation from New South Wales

in 1859, the European population was 23 520 persons.148

Development and exploration of the colony was rapid after separation, and although an

economic crisis slowed this expansion in 1866, the discovery of gold at a number of

regional settlements in 1867 ensured prosperity.149 The development of extensive

agriculture and mining industries have also been defining features of the State’s

economy and general development, with Queensland the least urbanised of all the

Australian States and Territories.150

In the twentieth century, Queensland experienced two long periods of government by

the one political party (or grouping); with a Labor government in office from 1915 -

1957 (except for a period of three years); and then a conservative government for 32

years from 1957-1989.151 A Country Party / Liberal Party coalition152 led by Frank

Nicklin came to power in 1957, and the conservatives did not lose control of the State

until the Australian Labor Party, led by Wayne Goss, won the 1989 Queensland State

Queensland Year Book 1998, above n 18, 3. The European population growth was so rapid at first that the population doubled every five years.

Ibid.

Ibid 3-4. As to the early history o f the State generally, see Ross Fitzgerald, A History o f Queensland: From the Dreaming to 1915, University O f Queensland Press, St Lucia, 1986; and Bill Thorpe, Colonial Queensland : Perspectives on a Frontier Society, University o f Queensland Press, St Lucia, 1996.

Queensland Year Book 1998, above n 18, 4. See also Ross Fitzgerald, A History o f Queensland from 1915 to the 1980s, University O f Queensland Press, St Lucia, 1985; Ross Fitzgerald and Harold Thornton, Labor in Queensland: From the 1880s to 1988, University O f Queensland Press, St Lucia, 1989. It has often been said that the electoral zoning system in place in Queensland (commonly called a gerrymander), was responsible for the amazing longevity o f conservative government during that period, but ironically the system was introduced by the Hanlon Labor Government in 1949, although later refined by the Bjelke-Petersen Government: see Peter Coaldrake, Working the System: Government in Queensland 1983-1989, University of Queensland Press, St Lucia, 1989, chapter 2. See also The Queensland Electoral System, Parliament o f Queensland website, at:

http://www.parliament.qld.gov.au/education/history/electoral.htm.

The Country Party has been known as the National Party since 1974, see Coaldrake, above n 151, 134-135.

6 0

election. That election was held in the context of revelations about corruption in the

police force and government by the Fitzgerald Inquiry into police corruption, which had

reported earlier that year.154

In more recent years, the State has been the birthplace of new conservative political

forces,155 which have had a considerable impact on both State and Federal politics.156 It

has also been said that the legal profession itself in Queensland is rather conservative.157

Queensland has often been seen as somehow different from the other Australian States,

as illustrated by a comment by Justice Kirby, when he describing the State as having

“special ways and a sometimes different outlook” .158

1.6 Colonial crime and punishment

Crime and punishment in colonial Australia have been the subject of study by a number

of researchers.159 What particularly characterised this period of history was the

153

153

154

155

156

157

158

159

The National Party governed in its own right from 1983 - 1989. For commentary on this period o f Queensland history, see Coaldrake, above n 151.

Report o f a Commission o f Inquiry Pursuant to Orders in Council, Commission o f Inquiry into Possible Illegal Activities and Associated Police Misconduct, Queensland Government, Brisbane, 1989 (“The Fitzgerald Report” ).

The main manifestation o f this was Pauline Hanson’s One Nation Party. In the 1998 Queensland State Election, this party gained 11 out o f the 85 seats in the Legislative Assembly of Queensland, the only House o f Parliament in the State. By the end o f 1999, the party had no representatives left in the Legislative Assembly due to one resignation and two separate groups of defections to other parties or groups of independents. The original party was deregistered in August 1999, but later re-registered in another form. See Queensland Parliamentary website at:

http://www.parliament.qld.gov.au/education/history/parties.htm.

The effect o f this impact is explored in essays in Bligh Grant (ed), Pauline Hanson: One Nation and Australian Politics, University o f New England Press, Armidale, NSW, 1997. See also Hogg and Brown, above n 28, 176-179.

Justice Michael Kirby, “The Five Queensland Justices o f the High Court o f Australia” (1996) 15 Australian Bar Review 161.

Ibid.

See eg, Finnane, above n 4; Paula-Jane Byrne, Criminal Law and Colonial Subject: New South Wales, 1810-1830, Cambridge University Press, Melbourne, 1993; Philips and Davies, above n 3; P N Grabosky, “On the History o f Punishment in Australian and New Zealand” (1991) 24 The Australian and New Zealand Journal o f Criminology 139; Peter N Grabosky, “Patterns of Criminology in New South Wales, 1788-1973” in Duncan Chappell and Paul Wilson (eds), The Australian Criminal Justice System, Butterworths, Sydney, 1977; and Mark Finnane, “After the Convicts: Towards a History o f Imprisonment in Australia” (1991) 24 The Australian and New

61

emphasis on corporal punishment and punishment of the body.160 The reasons for the

popularity of flogging were many, and according to Finnane, this punishment remains a

“significant element of the collective psyche, constantly on the verge of recovery.” 161

Hanging was frequently used as a punishment, often as a method of control over the

convicts.162 The use of this punishment was particularly intense up until the mid

1850s.163

In 1787, the British Government passed an Act to authorise the creation of a court of

criminal jurisdiction in New South Wales.164 The Act provided that “outrages and

misbehaviours” were to be tried in a Court of Judicature by a Judge Advocate together

with six military officers.165 The brutality of convict punishment in Australia has been

graphically described by a number of writers and is not in dispute.166 * The reality of the

situation in the early days of the colony was that it was “basically a gaol run by a

military establishment” , and thus deterrence was considered to be of central

importance.168 Whether this was an effective strategy was another matter.169 There was

however an inherent and peculiar contradiction in the British settlement, where a penal

colony was ultimately transformed into a free society, and where the colonists were170convicts.

160

161

162

163

164

165

166

167

168

169

170

Zealand Journal o f Criminology 105. See a detailed account of juries and the criminal trial process in Michael Chesterman, “Criminal Jury Trials in Australia: From Penal Colonies to a Federal Democracy” (1999) 62 Law and Contemporary Problems 69.

See Finnane, above n 4, chapter 4; Paula-Jane Byrne, Criminal Law and Colonial Subject: New South Wales, 1810-1830, Cambridge University Press, Melbourne, 1993, 106; and generally, Foucault, above n 5.

Finnane, above n 4, 108. Whipping was not formally abolished as a punishment in Queensland until 1986: see n 245.

Ibid 128.

Ibid.

27 Geo. Ill, c 11.

Clark, above n 1, 80-81. As to the operation o f the courts in the early days o f the Colony, see Neal, above n 4, chapter 4.

Hughes, above n 36. See also Nagle, above n 95, chapter 6, “The Convicts and Punishment” ; and also Braithwaite, above n 4, 19.

Nagle, above n 95, 206.

Ibid.

Ibid 208.

Neal, above n 4, 32-33 and chapter 2 generally.

6 2

After colonisation of Moreton Bay by the British in 1823 and settlement by soldiers and

convicts in 1824, the law applied in the colony was a mixture of Imperial and colonial

enactments and various other regulations.171 The British system of trial by jury in

serious criminal cases was imported to the colonies, and has been in use ever since.172

Superintendents and overseers had the power to inflict “moderate punishment or

correction” for “misbehaviour or disorderly conduct” .173 By 1832, the custody and

management of the colony was in the hands of the military commandant.174 * McPherson

points out that it is unclear who had administered punishments before this time, but it

was probably either the commandant or the superintendent who presided, and that they

sat together in the case of serious offences.173

Capital offences were subject to the jurisdiction of the Supreme Court sitting in

Sydney.176 The law to be applied was English law.177 The court proceedings therefore

took place in Sydney, the accused and witnesses travelling by sea. Hangings of

convicted persons also took place in Sydney, with two reported exceptions in Brisbane

as examples to the other convicts.178 *

A proclamation in 1840 declared the end of Moreton Bay as a penal colony, and a

Court of Petty Sessions was constituted with a Police Magistrate, and two lay justices.180

Trials for serious crimes were heard in Sydney until 1850, when the first bi-annual

Circuit Court was held at Brisbane.181 McPherson notes that at the first sitting, the

These included the Imperial Act 5 Geo IV c 84, which regulated the conduct o f transported convicts. See generally McPherson, above n 140, 3.

For a comprehensive history o f trial by jury in Australia, see Chesterman, above n 159.

McPherson, above n 140, 3; citing 5 Geo IV c 84, s 15.

Ibid 4, citing 3 Wm IV No 3, s 8.

Ibid.

New South Wales Act 1823, Australian Courts Act 1828.

New South Wales Act 1823; Australian Courts Act 1828.

McPherson, above n 140, 5.

1 Callaghan’s Acts (NSW), 519n.

McPherson, above n 140, 6.

Ibid 8; Administration o f Justice Act 1840.

171

172

173

174

175

176

177

178

179

180

181

63

visiting judge Therry J delivered an address on the evils of alcohol and its association

with crime (no doubt warranted).182 The first resident judge was appointed in 1856

pursuant to the Moreton Bay Judge Act 18 5 5,183 and a Supreme Court at Moreton Bay

was created by the Moreton Bay Supreme Court Act 1857184 and housed in the old

convict barracks building which was in a poor state of repair.185 * Queensland was

created a separate colony in 1859 by Letters Patent, to be governed by a Legislative

Assembly and Legislative Council. The Supreme Court of Queensland was founded

in 1861.187

At the time of separation in 1859, the criminal law in Queensland consisted of a mixture

of English common law and statute law and Imperial and New South Wales statutes.188 *

Many offences in Queensland were originally punishable by death, but at the time of

separation, the list had been reduced to treason, murder, piracy and various military

offences. By 1865, the Criminal Practice Act of 1865 limited capital offences to

treason, piracy, murder, rape and bushranging.190 The trial judge also had the authority

to abstain from passing a death sentence for any offence other than murder.191 In the

case of non-capital offences, in a scheme similar to that later adopted under the

Queensland Criminal Code, unless another penalty was stated in the penal legislation, a

182

183

184

185

186

187

188

189

190

191

Ibid.

19 Vic No 31. See also McPherson, above n 140, 11.

20 Vic No 25.

McPherson, above n 140, 13-14.

The Legislative Council was later abolished in 1922.

The court was founded under three statutes; the Supreme Court Constitution Amendment Act 1861 25 Vic No 13; the Additional Judge Act 1862 26 Vic No 9; and the Supreme Court Act 1863 27 Vic No 14. The actual details o f the constitution o f the court are complex; see generally McPherson, above n 140, 27-30.

Ibid 110. See also Freiberg and Ross, Sentencing Reform and Penal Change: The Victorian Experience, above n 3, chapter 2, for a description o f the evolution o f sentencing law in Victoria from 1850 when the colony was established.

Ibid (McPherson) 116.

Ibid 117. Bushranging was the colonial equivalent o f highway robbery.

Criminal Practice Act 1865 ss 43, 44. McPherson records that statistics from 1860 to 1900 disclose that there were 61 executions; two for bushranging, 14 for rape, and the remainder for murder: McPherson, above n 140, 118.

6 4

person could be liable, under s 45 of the Criminal Practice Act of 1865, to a term of

imprisonment ranging from three to seven years.

1.7 A pattern repeated

The British colony in Australia was established primarily to solve a problem with the

overflow of prisoners, and Queensland in turn performed the same purpose as a northern

outpost for the settlers in New South Wales. But still the problem remained. By the

mid 1880s, prisoner overcrowding necessitated the use of an old hulk, the Proserpine,

on the Brisbane River to house prisoners, a reminder of the prison hulks on the Thames

nearly 100 years earlier. However, a more permanent solution was required.

The brutal beginnings of the State of Queensland as a penal colony were thus to be

continued in the 1860s with the establishment of a notorious prison settlement at

St Helena Island, a few kilometres offshore from Brisbane in Moreton Bay. St Helena

was established as a prison facility in 1868 to house the worst prisoners, in an endeavour

to alleviate prison overcrowding in Brisbane.192 When accommodation could not be

found on the mainland, authorities turned to the isolated island in the Bay; first with

building a quarantine station in mind, and later upon abandonment of that project,

turning St Helena into an isolated prison with virtually no means of escape, surrounded

as it was with shark infested waters.193

By the early 1900s, farming was successfully carried out on the island; and St Helena

said to be a model prison.194 The prison settlement at St Helena continued operating

until 1933, however the colonial remains are a popular destination for day-trippers and

school excursions.

192

193

See generally Jarvis Finger, The St Helena Island Prison in Pictures, Boolarong, Brisbane, 1988 for the history o f the penal settlement at St Helena.

Ibid.

Ibid.194

65

The use of St Helena Island as a prison repeated the pattern of transportation; of

removing and isolating prisoners from the general population; of sending them far away

where they could not voluntarily return,195 and of using them as a resource for the

colony.

1.8 Sir Samuel Griffith

The origin of modem criminal law in Queensland undoubtedly lies with Sir Samuel

Walker Griffith (1845 - 1920), a distinguished Queensland barrister, parliamentarian

and judge, who drafted the Criminal Code 1899 (Qld) .196 The Criminal Code continues

in use in virtually the same form in Queensland, a century after it came into operation.197

Samuel Griffith was bom in Wales in 1845 to a strict Congregationalist family, his

father a minister in the church.198 In 1853, when Samuel was eight, his father was sent

as a missionary to the Colony of New South Wales, and the Griffith family first settled

in the town, now city, of Ipswich just west of Brisbane.199 The person who drafted the

Queensland Criminal Code and had so much influence on the early history of the State

was himself a product of British colonialism and Empire.

Griffith was mainly educated in New South Wales, obtaining his Bachelor of Arts

degree from the fledgling University of Sydney. His degree consisted of three years’

study of the classics, mathematics, philosophy and the sciences; graduating in 1863 (at

St Helena was thought to be escape proof; but in fact there were 50 escape attempts, two drownings and seven who reached the mainland. Three o f these were never recaptured (two before the official declaration as a prison): Jarvis Finger, The Escapes from St Helena, Boolarong, Brisbane, 1987, 1.

Griffith also drafted the Justices Act 1886 (Qld), which continues to govern the criminal jurisdiction o f the Magistrates Court to the present day.

An overhaul was promised by the Goss Labor Government, resulting in the Criminal Code (Qld) 1995; which, as a result o f a change in government, was never proclaimed into operation. Instead, another review was undertaken and extensive amendments made to the 1899 Code in 1997. See generally, Sally Kift, “How Not to Amend a Criminal Code” (1997) 22 Alternative Law Journal 215.

See generally Roger Joyce, Samuel Walker Griffith, University o f Queensland Press, St Lucia, 1984.

Ibid. His father ultimately served 28 years as a Congregational minister in Brisbane.

66

the age of 17) with first class honours.200 * He won many academic prizes at the

university, and was awarded a travelling scholarship to Europe. He completed three

years of articles of clerkship in Brisbane in 1867, and was called to the Queensland Bar

that year.202 Griffith was elected to the Legislative Assembly of Queensland in 1872,203

and became Attorney-General in 1874.204 * * He conducted a busy practice at the Bar

(taking silk in 1876), during his entire Parliamentary career including while Attorney- ̂Ar 00/"

General; conflict of interest notwithstanding. He became Liberal Premier of

Queensland from 1883 - 1888; and again from 1890 - 1893.207 While Premier, he

remained head of the Bar.208

Griffith was sworn in as Chief Justice of Queensland on 14 March 1893, a position he

held for 10 years. He was a major participant in the drafting and political acceptance of

the Australian Constitution,209 and is also known as one of the “fathers of federation” .210

200

201202203

204

205

206

207

208

209

210

Joyce, above n 198, 10; R K Forward, Samuel Griffith, Oxford University Press, Melbourne, 1964, 4-5. He obtained an M A in 1870, see Forward, 5.

Forward (ibid) 5.

Joyce, above n 198, 23.

Although he initially held the seat o f East Moreton, in November 1873 he was elected (by 29 electors) to the new seat o f Oxley: R B Joyce, “Samuel Walker Griffith” in D J Murphy and R B Joyce (eds), Queensland Political Portraits 1859-1952, University o f Queensland Press, St Lucia, 1978, 147. Ironically, Oxley was also (over 125 years later), to be the name o f a Federal seat held for one term by another famous incumbent, Pauline Hanson, who was to become president o f the right-wing One Nation Party.

Joyce, above n 198,47.

He was said to have spent more time on his legal practice than his political career, at least partly for the reason that politics was a part-time career at that time: R B Joyce, “Samuel Walker Griffith” in D J Murphy and R B Joyce (eds), Queensland Political Portraits 1859-1952, University o f Queensland Press, St Lucia, 1978, 144-145.

The Liberal party was not the same conservative party that it is today in Queensland. It was said that the party was the working man’s friend, and that if Griffith were alive today, because o f his socialist leanings he would have been Labor party leader: Forward, above n 200, 17.

The Liberal party election success in 1883 was said to be due largely to their “White Australia” policy: Forward, above n 200, 13.

Joyce, above n 198, 119.

See generally, John Macrossan et al, Griffith, the Law and the Australian Constitution, Royal Historical Society of Queensland, Brisbane, 1998.

See discussion by the Chief Justice o f Queensland The Hon Paul de Jersey AC, “Led in, but now Leading: Queensland and Federation” , Speech to Australasian Pioneer’s Club Annual Dinner, United Services Club, Brisbane, 4 August 2000.

67

He later served as the first Chief Justice of the High Court of Australia from 1903 -

1919.211 He died on 9 August 1920 at the age of 75.

Griffith had a reputation for a brilliant mind, but could be testy, with a “conscious sense

of his own superiority” .212 * He was said to have been a brilliant lawyer, who made an

enormous and lasting contribution to politics and the law, particularly as the first Chief

Justice of the High Court. As a judge he was said to have “ few equals” , and to have a

mastery of the law which places him among the two or three leading lawyers in

Australia of all time.214 *

His Welsh beginnings in the heavily industrialised town of Merthyr Tydfil, later to be

the name of his house (Merthyr) at New Farm in Brisbane, and a well known road in the

area, were later romanticised by him. He became obsessed with tracing his family back

to the Welsh kings, spending considerable sums of money in a (futile) attempt to find

the link. He travelled back to Britain a number of times, once to sit on the Privy

Council, and sought acceptance of his status there, but was to be disappointed by the

lack of interest in Australia and the colonies in general.216

This could also be said to be a continuing theme for the colonies themselves, having

been founded on a system of British justice and British criminal law which was arguably

unsuited to the situation in Australia; being based as it was on British notions of

property and possession, both of real and personal property. The link with Great

Britain, formed by the claim of Australia as a colonial possession of the parent country,

was weakened but not broken by Federation and the creation of a nation in 1901. Also

See C L Pannam, “The Radical Chief Justice” (1964) 37 Australian Law Journal 275.

Forward, above n 200, 6.

As to this contribution, see Kirby, above n 157.

McPherson, above n 140, 191. (Mr Justice McPherson is a justice o f the Supreme Court of Queensland (Court of Appeal division) and well placed to make such a judgment.)

Kay Saunders, “Sir Samuel Griffith and the Writing o f the Constitution” in John Macrossan, Kay Saunders, Sandra Berns, Colin Sheehan and Katie McConnel (eds), Griffith, the Law, and the Australian Constitution, Royal Historical Society o f Queensland, Brisbane, 1998, 25.

Joyce, above n 198, 324-325.216

68

highly significant in the history of Australia was the rejection by the High Court of the

concept of terra nullius in the Mabo case; but this was not to occur for over two hundred

years after the original establishment of a British colony in Australia.217 A proposal for

Australia to become a republic was defeated by a referendum in 1999.218 *

1.9 The Queensland Crim inal Code

Griffith’ s enduring legacy to criminal law in Queensland is the Queensland Criminal

Code of 1899, which continues in use close to the same format as the original draft

presented by Griffith to both Houses of Parliament in 1897.220 Griffith began work on

the Crim inal Code in 1896 while holding the office of Chief Justice of Queensland. In

order to do so he read widely on the criminal law of many countries, and completed the

first draft on 25 March 1897, the final draft being completed on 19 August 1897.221

An Explanatory Letter to the Attorney-General dated 29 October 1897 was attached to

the draft, wherein Griffith pointed out that the criminal law of Queensland, quite apart

from Imperial Acts, was scattered throughout nearly 250 statutes, not to mention the

common law principles which also applied.222 In the letter, he stated that he had derived

assistance from an English Draft Code of Criminal Law, which had not, he observed,

become law. Sir Samuel noted however that the English Draft Code was not without

criticism.223 The Explanatory Letter said that he had derived “very great assistance”

from the 1888 Italian Penal Code, which he considered to be “the most complete and

Mabo v Queensland [N o 2/ (1992) 175 CLR 1. See also earlier discussion o f Mabo and terra nullius at 1.3 above.

See George Williams, “Where to Now?” (1999) 24 Alternative Law Journal 299; and Richard Miles, “Matters o f the Heart and the Heart o f the Matter: The Constitutional Referendum in Australian Politics” (2000) 25 Alternative Law Journal 53.

The Criminal Code was enacted as the Schedule to the Criminal Code Act 1899 (Qld).

Queensland at that time had both a Legislative Assembly and a Legislative Council; the latter upper house was abolished in 1922.

Joyce, above n 198, 219.

Sir Samuel Griffith, Explanatory Letter to Draft o f a Code o f Criminal Law, Government of Queensland, Brisbane, 1897, iv.

Ibid.223

69

perect Penal Code in existence” .224 He also had frequent recourse to the Penal Code of

the State of New York.225 * Knowledge of Italian, first gained when he travelled to Italy

om a University of Sydney Travelling Scholarship in 1865, may have contributed to his

emtiusiasm for the Italian Code.

Afier meetings with the Criminal Code Commission in early 1899, he revised the rules

anc forms to the Criminal Code until August 1899.227 The Draft Code presented by Sir

Sanuel Griffith in 1897 was passed as Schedule One to the Criminal Code Act 1899 (63

Vic No 9), and received assent from Sir Samuel himself as acting Governor on 28

November 1899.228 He continued work on the Rules in 1900,229 into which he was said

to nave invested an “extraordinary amount of laborious care” .230 The draft Criminal

Cede was a massive undertaking, containing 733 sections. The Griffith Code was later

als3 adopted by Western Australia and (what is now) Papua New Guinea.231

Tie Crim inal Code continued in use virtually unchanged until the Goss Labor

Government, which came into power in 1989 promising reform, commissioned a review

in 1990. The review process culminated five years later with the enactment of the

Crminal Code 1995, which was intended to replace the Griffith Code of 1899.

A1 hough the 1995 Code was enacted, it never came into effect; the Goss Labor

224

225

226

227

228

229

230

231

Ibid vii.

Ibid.

See Forward, above n 200. Sir Samuel also developed an interest in translation o f Italian works, in particular Dante, see A Douglas Graham, The Life o f the Right Honourable Sir Samuel Walker Griffith, The Law Book Co o f Australasia Pty Ltd, Brisbane, 1939, 90-92.

Joyce, above n 198, 219.

Ibid.

Ibid.

Graham, above n 226, 89.

Criminal Code 1913 (W A); Criminal Code Ordinance 1902 o f British New Guinea and subsequent enactments. See generally, R G Kenny, An Introduction to Criminal Law in Queensland and Western Australia, 5th ed, Butterworths, Sydney, 2000, 5-6. Tasmania and the Northern Territory also adopted Criminal Codes, but these were not based on the Griffith Code, although it was influential on their development. See Criminal Code (1924) Tas, and Criminal Code 1983 (NT). McPherson notes that it was also adopted in other imperial territories, including Nigeria, see McPherson, above n 140, 191. See also Robin O ’Regan, New Essays on the Australian Criminal Codes, The Law Book Co, Sydney, 1988, chapter 8 “The Migration o f the Griffith Code” .

70

Government losing power in 1995 after a by-election. The incoming Coalition

Government announced a policy for the scrapping of the 1995 Code, which was

eventually repealed in 1991 232 The 1899 Code therefore remains in force in

Queensland, but was substantially amended and overhauled by the Criminal Law

Amendment Act 1997, exactly 100 years after the Draft Code was presented to both

Parliaments by Sir Samuel Griffith.233

1.10 A Code of punishment

Punishment of offenders was only briefly dealt with in Griffith’ s explanatory letter, with

virtually the only reference being to the discontinuance of the term “penal servitude” .234 *

There was no consideration given in the letter to the philosophy of the punishment of

offenders or sentencing principles. There is also no indication in Sir Samuel’s major

biography, based as it was on his detailed diaries, letters and other original sources,

that he had studied, or had given any thought to any theories of punishment or principles

of sentencing in drafting the Criminal Code 236

Chapter IV of the Criminal Code dealt with punishments, and s 18 was headed Kinds of

Punishments 231 It read as follows:

The punishments which may be inflicted under this Code are as follows: -

Criminal Law Amendment Act 1997 (Qld).

Further substantial amendments were made in 2000 following recommendations from the Womens Taskforce on Women and the Criminal Code, see Taskforce on Women and the Criminal Code, Report o f the Taskforce on Women and the Criminal Code, Office o f Women’s Policy, Government o f Queensland, Brisbane, 1999, and Criminal Law Amendment Act 2000 (Qld).

Griffith, Explanatory Letter, above n 222, x.

Joyce, above n 198.

Nor is there any other indication in any o f the other studies on his life and work on the Criminal Code. See Graham, above n 226; Forward, above n 200; and R B Joyce, “Samuel Walker Griffith” in D J Murphy and R B Joyce (eds), Queensland Political Portraits 1859-1952, University o f Queensland Press, St Lucia, 1978. This does not mean however that he did not give consideration to these issues.

Section 18 continued in operation (with amendments) until repeal by the Penalties and Sentences Act 1992 (Qld).

71

• Death;238

• Imprisonment with hard labour;

• Imprisonment without hard labour;239

• Detention in an industrial or reformatory school;

• Solitary confinement;

• Whipping;

• Fine;

• Finding security to keep the peace and be of good behaviour.

The punishment of whipping cannot be inflicted on a female.

The sentences of imprisonment provided for offences under the Code were usually (and

still are) maximums of seven years, fourteen years, and life imprisoment. This reflected

the common terms of transportation in colonial days.240

Section 19 dealt with the construction of sections of the Code as to punishments,

providing, inter alia, that a lesser punishment, such as a shorter period of imprisonment,

could be imposed in lieu of the maximum penalty. Section 20 provided for the

imposition of cumulative sentences, and s 21 the royal prerogative of mercy.

The draft Code presented by Griffith in 1897, culminating in the Criminal Code which

came into effect in 1901, was a reflection of British justice and associated concepts of

punishment; with reliance on corporal punishment, imprisonment with hard labour, and

the death penalty.241 There were no justifications for punishment, no guidelines for

Death was the punishment for treason, piracy, attempted piracy with personal violence, murder and wilful murder: ss 37, 81, 82 and 305.

Imprisonment with irons was also put forward as an option by Griffith in the Draft Code, but was not included in the final version.

See discussion on transportation at 1.4, above.

The death penalty was to continue as a sentencing option in Queensland until abolition in 1922 by the Criminal Code Amendment Act 1922, s 3(i). The last execution occurred in 1915: Queensland Past and Present, above n 11, 312.

72

sentencing and no sentencing principles laid down; nor would there be any enshrined in

legislation for 91 years. In fact, what details there were on sentencing in the 1899 Code

were devoted to minutiae of implementation of punishment, mostly in relation to the

death penalty.242

The situation did not greatly improve throughout the twentieth century until the

enactment of the Penalties and Sentences Act in late 1992; in fact, the Crim inal Code

provisions on sentencing could easily be described as archaic. Throughout the 1900s,

the Criminal Code continued as the main source of offences in Queensland, both

indictable and simple,243 with the Vagrants, Gaming and Other Offences Act 1931 (Qld)

the other main source of simple offences.

In the twentieth century, the options for punishment remained largely in the Criminal

Code. The punishments in use during most of the 1900s,244 until the Penalties and

Sentences Act in 1992, were:

• Imprisonment - sections 18, and 19(1) - (3).

• Fines - sections 16 and 19(6).

• Whipping - sections 18, 19(5), 655 and 666. Whipping could not be inflicted on a

person sentenced to imprisonment for a longer period than two years. It also could

not be inflicted after six months from the date of sentence. Under section 655, the

court could give directions as to the number of strokes which were not to exceed 50

at a whipping. The instrument of whipping was also specified, and could be a birch

See s 651 (prisoner to be hanged by the neck until he is dead); s 652 (recording of sentence of death); s 653 (pregnant woman may apply for stay of execution on grounds she is with child of a quick child[sicj); s 664 (execution of sentence o f death); s 665 (commutation o f capital sentence).

Section 3 o f the Code defines indictable offences as crimes and misdemeanours. Simple offences are minor offences such as traffic or street offences, and are heard in the Magistrates Court.

As noted above, the death penalty was abolished in 1922, see Criminal Code Amendment Act 1922, s 3(i).

73

rod, cane, leather strap or cat which was made of leather or cord. The punishment of

whipping was not formally abolished until 1986.245

• Good behaviour bond - section 19(9).

• Absolute discharge - section 657A. This could be imposed for trivial offences only.

Suspended sentences of imprisonment under s 656 were available in very limited

circumstances only, and by the 1980s had fallen largely into disuse.246

Probation as a form of supervisory community based punishment was first introduced in

1889,247 and by 1896, 1 096 prisoners had been released under the scheme.248 Probation

provided a useful alternative for offenders for whom a fine or good behaviour bond was

too lenient, but whose punishment did not merit imprisonment. The Offenders

Probation and Parole Act 1980 (Qld) introduced community service orders, an order

similar to probation, where the offender did unpaid community work as a punishment.

In 1983 fine option orders were introduced into the Act, which gave courts further

options in relation to fines, giving the offender the option of performing unpaid

community service in lieu of paying a fine.249

By the 1990s, the available punishment options were limited to imprisonment, fines,

good behaviour bonds, probation, community service orders and absolute discharges.

The only way of avoiding a recorded conviction for an offence (before the enactment of

the Penalties and Sentences Act) was to be sentenced to an absolute discharge under s

657A of the Criminal Code, or to successfully complete a community service order.

Whipping was not omitted from the Code until 1986: s 4 o f The Criminal Code Amendment Act 1986 (Qld). Whipping had however fallen out o f favour as a punishment in the early 1900s and was little used since that time in all Australian jurisdictions, despite calls from time to time to revive it as a usual method o f punishment, see Finnane, above n 4, 119-123.

See Queensland, Parliamentary Debates, Legislative Assembly, 5 November 1992, 160-161.

Offenders Probation Act 1886 (Qld). Sir Samuel Griffith drafted this Act: see McPherson, above n 140, 191.

Queensland Past and Present, above n i l , 335.

See now Part 4, Penalties and Sentences Act 1992 (Qld). See also State Penalties Enforcement Act 1999 (Qld), which provides for alternative enforcement methods for fines.

74

Punishment options available were therefore limited in scope, and potentially harsh in

operation.

Purposes of sentencing were not included in the Criminal Code, and there was very little

case law on this aspect of sentencing. From 1958, the Crim inal Code (Qld) has been

published with annotations as Carter’s Criminal Law o f Queensland,150 and is used as a

reference work by virtually all criminal law practitioners, judges, magistrates, and

students of the law in Queensland. It is extensively annotated and is a very large work.

The 7th edition, published in 1988 and the last before the Penalties and Sentences Act

was enacted in 1992, contained less than one page of notes on the purposes of

sentencing as annotations to s 650 (now repealed) which was a general provision on the

power to sentence. This was out of nearly 1 000 pages in total devoted to the Criminal

Code and annotations.251

It is ironic then that a jurisdiction that had such considered development of the criminal

law at such an early stage did not develop sentencing law in a similar manner until

almost another 100 years had passed. This lack of development of sentencing law was

not confined to Queensland or Australia; it was not until the 1970s that changes were to

come about in a number of comparable jurisdictions worldwide, largely as a response to

the increasing theoretical and policy debate on criminological and punishment issues.

2 Toward reform

The nature and meaning of “reform” is not always easy to discern.252 It is however

reasonably clear that reform goes beyond mere change, and even defining it as change

The current edition is the twelfth: M J Shanahan, M P Irwin and P E Smith, Carter’s Criminal Law o f Queensland, 12th ed, Butterworths, Sydney, 2001.

Reginald Carter, Criminal Law o f Queensland, 7th ed, Butterworths, Sydney, 1988, 669.

David Brown, “The Politics of Reform” in George Zdenkowski, Chris Ronalds and Mark Richardson (eds), The Criminal Injustice System Volume Two, Pluto Press, Sydney, 1987.

75

for the better depends on whose opinion is being sought.253 Reform can also form part

of political considerations, aside from any worthwhile objectives.254

According to Freiberg and Ross,

Sentencing reform is therefore also about the process of sentencing itself: the

relative use of sanctions, the flow of cases within and between the courts, the

rate of guilty pleas, trial rates as well as dismissal and charging rates. It is also a

politically sensitive subject. It reflects and affects public attitudes, opinions and

morale and the attitudes and behaviours of those who take part [in] the system:

police, lawyers, magistrates and judges, defendants, victims and witnesses.255

Over the past 30 years there have been legislative initiatives in many jurisdictions,256

which have presumably been motivated by a desire to review and reform257 the

sentencing process.258 These legislative measures have been implemented at the same

Ibid 256.

Janet Chan, “The Limits o f Sentencing Reform” in George Zdenkowski, Chris Ronalds and Mark Richardson (eds), The Criminal Injustice System Volume Two, Pluto Press, Sydney, 1987, 225- 230.

Freiberg and Ross, Sentencing Reform and Penal Change: The Victorian Experience, above n 3,7.

See overall analysis in Andrew Ashworth, “ Sentencing Reform Structures” in Michael Tonry (ed), Crime and Justice: A Review o f Research, 16, University o f Chicago Press, Chicago, 1992. See also a comprehensive discussion o f the issues in the reform process in Andrew Ashworth, “Criminal Justice, Rights and Sentencing: A Review o f Sentencing Policy and Problems” in Ivan Potas (ed), Sentencing in Australia: Issues, Policy and Reform, Australian Institute of Criminology, Canberra, ACT, 18-21 March 1986.

Although sometimes the “reform” is not welcomed by sentencing scholars: see for example the introduction o f mandatory minimum sentencing provisions in the Northern Territory, and the burgeoning critical literature, see eg, Neil Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects o f Mandatories” (1999) 22 University o f New South Wales Law Journal 261. This literature is discussed in detail in chapter 5.

This may not always be the case however. Morgan and Clarkson point out that in some cases the legislation (eg in Sweden and Victoria) has in large measure codified existing practice and as a consequence little has changed: Rod Morgan and Chris Clarkson, “The Politics o f Sentencing Reform” in Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995, 15-16. By contrast however, in the US there has been substantial change with the introduction of mandatory minimum sentencing and sentencing guidelines in many jurisdictions. See generally Tamasak Wicharaya, Simple Theory, Hard Reality: The Impact o f Sentencing Reforms on Courts, Prisons and Crime, State University o f New York Press, Albany, 1995; and Michael Tonry, Sentencing Matters, Oxford University Press, New York, 1996. The

76

time as increased debate in the literature on the sentencing process.259 In many cases,

the influence o f the literature on legislation can be readily seen, for example, the direct

influence of just deserts on the Criminal Justice Act 1991 (UK ),260 * and the development

of numerical sentencing guidelines and sentencing grids in the United States, for

example the Minnesota Guidelines. However even in the case of just deserts, which

has been a popular concept in sentencing policy in recent times, there is a considerable

variance in the interpretation o f this in the legislation o f different jurisdictions.262

The past 25 years has seen considerable re-evaluation and development of sentencing

policy and practice in Australia, largely mirroring the “25 years of sentencing

ferment” 263 in the United States, but with very different outcomes. The Australian

reviews have led not to sentencing commissions and guidelines in the US sense, but to a

greater legislative regulation o f the process.

use o f sentencing guidelines and grids in the US is examined further in chapter 5. On sentencing reform see Andrew von Hirsch, “Sentencing Reform: Its Goals and Prospects” in Antony Duff, Sandra Marshall, Rebecca Emerson Dobash and Russell Dobash (eds), Penal Theory and Practice: Tradition and Innovation in Criminal Justice, Manchester University Press, Manchester, 1994, which discusses sentencing reform generally, as well as in the context of the Criminal Justice Act 1991 (UK).

See eg, Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform , Clarendon Press, Oxford, 1995; and Andrew von Hirsch and Andrew Ashworth, Principled Sentencing: Readings on Theory and Punishment, 2nd ed, Hart Publishing, Oxford, 1998.

See Andrew Ashworth, “The Criminal Justice Act 1991” in Colin Munro and Martin Wasik (eds), Sentencing, Judicial Discretion and Training, Sweet and Maxwell, London, 1992; and Andrew Ashworth, “The New English Sentencing System” (1992) 25 University o f California Law Review 755. See also Ian Dunbar and Anthony Langdon, Tough Justice: Sentencing and Penal Policies in the 1990s, Blackstone Press Limited, London, 1998, chapter 8.

Just deserts and numerical guidelines systems of sentencing are not necessarily linked however: Andrew Ashworth, “Reflections on the Role of the Sentencing Scholar” in Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995, 251. See further discussion on US sentencing guidelines in chapter 5.

Anthony Bottoms, “The Philosophy and Politics of Punishment and Sentencing” in Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995, 21; Richard Frase, “Sentencing Guidelines in Minnesota and Other American States: A Progress Report” in Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995.

Tonry, Sentencing Matters above n 258, 6.

77

Major reviews o f sentencing policy and practice have been conducted by the Australian

Law Reform Commission,264 the Victorian Sentencing Committee,265 * * and the New

South Wales Law Reform Commission. A ll three examinations had as their outcome

an increased knowledge and insight into sentencing, resulting in legislative changes

which have implemented some or all of the recommendations from each report. All

three reports are further considered in the analysis of the present judicial study in

subsequent chapters.

While there has never been a comprehensive formal review undertaken of sentencing

law in Queensland, the ALRC and Victorian reports clearly had an influence on the

adoption in Queensland of legislation which governs the sentencing process, and the

reform process is therefore discussed below. The New South Wales Law Reform

Commission, which reported on sentencing in 1996, has not been a direct influence on

the process o f reform in Queensland, but is nonetheless included here as the discussion

paper and report discuss matters of relevance and importance in the reform process.

In addition to the Australian sentencing reviews, there was also an influential and

thorough investigation conducted into sentencing in Canada in 19 87.268 While the

Canadian process likewise did not have any direct influence on either the Queensland

sentencing legislation or the judicial process, it nonetheless will be briefly discussed, as

it has made an important contribution to the literature on reform.269 The Canadian

review was directly influential in the ALRC and Victorian studies, as regular exchanges

ALRC 15, above n 8; ALRC 44, above n 8.

Victorian Sentencing Committee Report, above n 9.

New South Wales Law Reform Commission, Sentencing: Discussion Paper No 33, New South Wales Law Reform Commission, Sydney, 1996; New South Wales Law Reform Commission, Sentencing (Report No 79), Law Reform Commission Publications, Sydney, 1996.

In Victoria, see the Sentencing Act 1991; the Commonwealth, s 16A Crimes Act 1914; the Australian Capital Territory, ss 429, 429A Crimes Act 1900; and in New South Wales, see Crimes (Administration o f Sentences) Act 1999, Crimes (Sentencing Procedure) Act 1999,Crimes Legislation Amendment (Sentencing) Act 1999.

See Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987.

78

were made between the Victorian, ALRC and Canadian Commissioners, in the form of

visits and other contact.270

A sentencing jurisprudence arguably did not begin to develop in Australia until the last

20 or so years of the twentieth century.271 By the late 1970s, the High Court had begun

expressing its view on some aspects of sentencing in cases such as Veen v The Queen

(No 1),212 and the Federal Court in Channon v The Queen?13 However, generally

speaking, the High Court has adopted a non-interventionist sentencing policy. Appellate

review in this area has largely been left to the State and Territorial Courts of Appeal.274

A comment made by Murphy J in Veen (No 1) illustrates the problem with the lack of

development o f sentencing in the 1970s in Australia:

This case illustrates the failure o f the judicial system (at least the superior courts)

to develop satisfactory principles and procedures in sentencing. Although

sentencing is often a much more difficult task than ascertaining guilt, it is

neglected in legal education and in professional practice. Far more time and

attention is paid to questions o f determining guilt than to the also important

question of what to do with the offender.275

The scene was therefore set by the late 1970s for the reform of sentencing law.

It is noted also that there was also a review of sentencing conducted in Ireland: see Ireland Law Reform Commission, Consultation Paper on Sentencing, Ireland Law Reform Commission, Dublin, 1993.

As noted by George Zdenkowski, Commissioner in Charge of the ALRC Reference (from July 1984).

See eg, discussion on this in Jeff Smith, “Clothing the Emperor: Towards a Jurisprudence of Sentencing” (1997) 30 The Australian and New Zealand Journal o f Criminology 168; and Mirko Bagaric, “Sentencing: The Road to Nowhere” (1999) 21 Sydney Law Review 597.

(1979) 143 CLR 458. See also Veen v The Queen (N o 2 ) (1988) 164 CLR 465

Channon v The Queen (1978) 20 ALR 1.

The High Court is reluctant to grant special leave in sentencing cases and will only do so in very limited circumstances: see Lowe v The Queen (1984) 154 CLR 606; Ryan v The Queen [2001] HCA 21, paras 89-91 (Kirby J).

Veen v The Queen (No 7) (1979) 143 CLR 458, 494 (Murphy J). Veen (No 7), and Veen (No 2) (1988) 164 CLR 465 are discussed in subsequent chapters analysing the judicial study.

79

2.1 Australian Law Reform Commission Reference on Sentencing

The first major attempt276 to consider sentencing reform in Australia arose when the

Australian Law Reform Commission (ALRC ) was given a reference in 1978 by the

Federal Attorney-General to review “the laws o f the Commonwealth and the Australian

Capital Territory (ACT) relating to the imposition o f punishment for offences and any

related matters” .277 * The reference particularly drew attention to the costs and other

unsatisfactory characteristics of imprisonment; the adequacy o f existing alternatives to

imprisonment; and the need for greater uniformity in sentencing, especially in respect to

federal offenders throughout Australia. Special mention was also made of the interests

of the public and victims of crime.

In 1980, the Commission published an interim report, ALRC 15,279 * which made a

number o f recommendations on sentencing, and reported on a national survey of judges

and magistrates, prosecutors and offenders. It also resulted in a number of changes

being made to the Crimes Act 1914 (Cth), including provisions that an offender should

not be sent to prison unless no other penalty was appropriate, and that a court sending an

offender to prison must state its reasons. Work was then suspended on the reference

until 1984 due to resourcing and other issues. The final report of the ALRC on the

reference was published in 1988.281

Note however the work of the Mitchell Committee in South Australia, Criminal Law and Penal Methods Reform Committee of South Australia, First Report: Sentencing and Corrections, Adelaide, 1973.

ALRC 44, above n 8.

Ibid. See discussion of victims and restorative justice generally in chapter 6.

ALRC 15, above n 8.

See s 17A Crimes Act 1914 (Cth).

ALRC 44, above n 8. See also George Zdenkowski, “Guiding Sentencing Discretion: The Approach of the Australian Law Reform Commission” in Proceedings o f the Institute o f Criminology No 78 Sentencing, University of Sydney Faculty of Law, Sydney, 1988.

80

At various times during the reference, discussion papers were published, dealing with

ACT reform proposals,282 sentencing goals and reform o f the process,283 sentencing

options and sanction hierarchies,284 and federal prisons.285 Two other reports were

written on parole and early release of federal prisoners,286 and spent convictions.287

Although the ALRC reference dealt specifically with federal offenders, the

comprehensive review of sentencing which resulted could be said to be the catalyst for

the further extensive reform which followed in other jurisdictions. By the time of the

final report in 1988, the Victorian Sentencing Commission was completing an

examination o f sentencing matters; followed in the next decade by a review by the New

South Wales Law Reform Commission.288

Underlying the final ALRC report was the concept o f just deserts: “This report, is,

therefore, based on the view that punishment should be just - in the sense o f being a real

punishment, appropriate but not excessive - and consistently applied” .289 Other

sentencing goals referred to as legitimate justifications for sentencing offenders were

rehabilitation and restitution. Rehabilitation was seen as a means for promoting crime

control and crime reduction, which were advanced as overall goals o f the criminal

282

283

284

285

286

287

288 289

Australian Law Reform Commission, Sentencing: Reform Options, Australian Government Publishing Service (ALRC DP 10), Canberra, 1979.

Australian Law Reform Commission, Sentencing: Procedure, Australian Law Reform Commission (ALRC DP 29), Canberra, 1987.

Australian Law Reform Commission, Sentencing: Penalties, Australian Government Publishing Service (ALRC DP 30), Canberra, 1987.

Australian Law Reform Commission, Sentencing: Prisons, Australian Government Publishing Service (ALRC DP 31), Canberra, 1987.

Australian Law Reform Commission, The Commonwealth Prisoners Act, Australian Government Publishing Service (ALRC 43), Canberra, 1987.

Australian Law Reform Commission, Spent Convictions, Australian Government Publishing Service (ALRC 37), Canberra, 1987.

Both of these sentencing reviews are discussed below.

ALRC 44, above n 8, 17. See also statement of sentencing principles in the summary of the report at xviii. The use of just deserts as a primary goal in sentencing as recommended by the ALRC was not welcomed by all, with the Law Society of New South Wales calling for a modified rehabilitation focus, as just deserts was seen as possibly providing gratification to the vengeful and having the potential for abuse by authoritarian governments: NSW Law Society, “Law Society Response to ALRC Sentencing Reform Proposals” [1987] Law Society Journal 77, 77.

81

justice system. Whilst neither rehabilitation nor restitution were seen as an appropriate

purpose for punishment in itself, each was encouraged as a sentencing goal within the

context o f a just punishment for the crime.290 *

Incapacitation and deterrence were also explored in the ALRC report as justifications for

punishment, however the ALRC was of the view that neither of these was an appropriate

sentencing goal. Incapacitation, referring here to the protection of society by

imprisoning offenders who are likely to re-offend, was seen as preventative, rather than

being based on the crime actually committed. The Commission therefore concluded that

it “runs counter to the general principle of justice underlying this report and the criminal

justice system, which requires that the punishment imposed be linked to the crime

committed by the offender” . For the same reason, general deterrence was rejected as

a sentencing goal or objective, as singling out an offender for increased punishment by

reference to the future hypothetical crime of another, was said to run counter to the

principles o f consistency and justice which were at the base o f the report.292 This

contrasted with the situation of deterring offenders by the increase in maximum

penalties by Parliament, wherein a statement was being made that the offence is to be

regarded more seriously than was the case in the past.

In total, the ALRC made 179 recommendations in their final report, ranging from

sentencing goals (discussed above), through lists o f factors which should be taken into

account on sentence and sentencing options, to the introduction of a sentencing

information system, a sentencing council and sentencing information programs for

judicial officers. Many of these recommendations were not implemented by the

ALRC 44, above n 8, 17-18.

Ibid 18.

Ibid. General deterrence does not appear as a sentencing justification in the Crimes Act 1914 (Cth). Section 16A(2)(j) specifically mentioned only individual deterrence. Despite this, the courts have interpreted s 16A(1), which refers to a sentence of a severity appropriate in all the circumstances of the offence, as including general deterrence: See D PP (Cth) v El Karhani (1990) 21 NSWLR 370, R v Sinclair (1990) 51 A Crim R 418, R v Pauli (1990) 20 NSWLR 427. See further discussion on this in chapter 1 at 5.3.

See ALRC 44, above n 8, Summary of Recommendations. A number of these recommendations are discussed in subsequent chapters.

290291292

82

Commonwealth, either at the time or subsequently, although sl6A of the Crimes Act

1914 (Cth) does set out a limited number of sentencing principles.294 * It is ironic then

that State sentencing legislation, such as the Penalties and Sentences Act 1992 (Qld) and

the Sentencing Act 1991 (Vic), incorporates many o f the sentencing principles as

recommended by the ALRC.

2.2 Victorian Sentencing Committee

The State o f Victoria is notable in Australia for a history of sentencing reform and

debate, resulting in various pieces of sentencing legislation, culminating in the

Sentencing Act 1991 (V ic) and subsequent amendments.

Almost contemporaneous with the latter stages o f the ALRC review was an

investigation into sentencing by the Victorian Sentencing Committee, which received a

reference in 1985 to review a number of issues in relation to sentencing, including

current sentencing policy, just deserts, sentencing guidelines, and the role of the media

in sentencing. The reference culminated in a comprehensive three volume report in

1988, containing extensive recommendations on sentencing reform, and a draft bill.296

After a comprehensive review by the Parliament o f the bill, including the input of the

Sentencing Task Force,297 the Sentencing Act 1991 (V ic) resulted.298 That Act was said

to be the result of “ the most detailed overhaul o f Victorian sentencing law this

century” .299

294295

296297298299

See also ss 429 and 429A of the Crimes Act 1900 (ACT).

See a description of the process of reform in Freiberg and Ross, Sentencing Reform and Penal Change: The Victorian Experience, above n 3, chapter 2. See also Arie Freiberg and Stuart Ross, “Change and Stability in Sentencing: A Victorian Study” (1995) 13 Law in Context 107; Arie Freiberg, “Sentencing Reform in Victoria: A Case-Study” in Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995 and Arie Freiberg and Richard Fox, “Sentencing Structures and Sanction Hierarchies” (1986) 10 Criminal Law Journal 216.

Victorian Sentencing Committee Report, above n 9.

Freiberg “Sentencing Reform in Victoria: A Case-Study”, above n 295, 65.

Ibid 56.

Richard Fox, “Order Out of Chaos: Victoria’s New Maximum Penalty Structure” (1991) 17 Monash University Law Review 106, 106.

83

According to the report, the Victorian Sentencing Committee was set up in response to a

loss o f confidence in the sentencing process in Victoria.300 * * In particular, the case of R v

Yates was the catalyst, as in that case the Full Bench of the Supreme Court

expressed dismay at the disparity between the sentences passed by the courts in Victoria

and the reality o f the actual time served in custody, which, it was said, often bore little

relation to each other.303

The report considered in detail the aims and purposes o f sentencing and recommended

that the principle o f just deserts ought to set the maximum sentence, suggesting however

that this would be subject to modification by giving weight to other principles; namely,

the principle o f parsimony, relevant aggravating and mitigating factors, and other aims

of sentencing, namely rehabilitation, deterrence and denunciation.304 * * * * Recommendation

3.15.1 o f the report considered sentencing aims and provided a list o f considerations

which were to be the “only purposes” for which sentences may be imposed. It was these

purposes, which formed the basis (albeit modified), o f the purposes which laterl A r

appeared in the Victorian Sentencing Act 1991, and subsequently in the Queensland'XOfi

Act. A number of the other aspects of the Sentencing Act are repeated in similar

terms in the Queensland Act, such as intensive correction orders, suspended

sentences,309 and fines.310 It appears however that in the case of indefinite sentences,

300301302

303

304305306307308309310

Victorian Sentencing Committee Report, above n 9, 1, 34.

[1985] VR 41.

Freiberg “Sentencing Reform in Victoria: A Case-Study”, above n 295, 55; and Timothy Walker, “Starke on Sentencing” [1987] Law Institute Journal 278.

See also Arie Freiberg, “Legislation Comment: Truth in Sentencing? The Abolition of Remissions in Victoria: Sentencing Act 1991 (Vic)” (1992) 16 Criminal Law Journal 165, 167- 168.

Victorian Sentencing Committee Report, above n 9, 122.

Section 5 Sentencing Act 1991 (Vic).

Section 9(1) Penalties and Sentences Act 1992 (Qld).

The genesis of these in the Victorian Act has never been acknowledged.

Victoria Part 3 Division 2 Subdivision 2; cf Queensland Part 6.

Victoria Part 3 Division 2 Subdivision 3; cf Queensland Part 7.

Victoria Part 3 Division 4; cf Queensland Part 4.

84

added to the Victorian Act in 1993,311 the tables were turned, and the Victorian

legislative amendments were modelled on Part 10 o f the Penalties and Sentences Act

1992 (Qld),312 which was already in force.313

The Victorian Sentencing Committee Report provides not only a valuable contribution

to the literature on sentencing reform, but also an important aid in understanding the

genesis o f the Victorian Sentencing Act 1991, and thus the Queensland Penalties and

Sentences Act 1992 (Qld).314 Another interesting aspect of the reform process in

Victoria was the strong opposition of the Supreme Court judges to a number of the

proposed changes, thus illustrating the difficulties that can be encountered in “ selling”

reform to those who must embrace it, in order for it to work. This opposition, which

was primarily directed at perceptions that judicial discretion was going to be

constrained, is discussed further in chapter 5.

Arie Freiberg has been one of the most constant and authoritative commentators on the

Victorian reforms.315 In a recent jointly authored work, Arie Freiberg and Stuart Ross

argue persuasively that the changes which have taken place in that State must be seen in

See Richard Fox, “Legislation Comment: Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (Vic)” (1993) 17 Criminal Law Journal 394.

Part 10 of the Queensland Act attracted considerable criticism at the time of its amendment (although very little comment since). This criticism was on the basis that Part 10 relies heavily on justifications of protection of the community, and predictions of dangerousness. See Peter Mals and Geoffrey Grantham, “Queensland Boards a Sinking Ship - New Dangerous Offenders Legislation” (1993) 18 Alternative Law Journal 17; and Jim Parke and Brett Mason, “The Queen of Flearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Qld)”(1995) 19 Criminal Law Journal 312. See also discussion in sentencing dangerous offenders generally in Arie Freiberg, “Guerillas in our Midst?” in Mark Brown and John Pratt (eds), Dangerous Offenders: Punishment and Social O rder, Routledge, London, 2000.

The Queensland Act came into force in late 1992, see discussion below at 3.1. Fox notes that this link was not acknowledged: see Fox, above n 311, 406.

See however criticisms of the report in Roger Douglas, “Rationalising Sentencing? The Victorian Sentencing Committee’s Report” (1988) 12 Criminal Law Journal 327.

See eg, Arie Freiberg and Richard Fox, “Sentencing Structures and Sanction Hierarchies” (1986) 10 Criminal Law Journal 216; Arie Freiberg, “Legislation Comment: Truth in Sentencing? The Abolition of Remissions in Victoria: Sentencing Act 1991 (Vic)” (1992) 16 Criminal Law Journal 165; Freiberg “Sentencing Reform in Victoria: A Case-Study”, above n 295; Arie Freiberg and Stuart Ross, “Change and Stability in Sentencing: A Victorian Study” (1995) 13 Law in Context 107; and Freiberg and Ross, Sentencing Reform and Penal Change: The Victorian Experience , above n 3. See also Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed, Oxford University Press, Melbourne, 1999, 3-7.

85

the context o f the long-term evolution of sentencing law, and within a broad historical

context.316 This observation could also be said to have equal force in relation to

Queensland, as the preceding discussion has illustrated.

2.3 New South Wales

The New South Wales Law Reform Commission received a reference in the mid 1990s

to review generally the laws in relation to sentencing, including amongst other things,

formulating principles and guidelines. The major outcomes of the reference were a

discussion paper in 1996,317 a report, also in 1996,318 and legislation, in late 1999.319

The report contained 87 recommendations, referring to specific issues such as pre­

sentence reports, victim impact statements, various sentencing options and more broadly

the recommendation to consolidate statutory provisions relating to sentencing

(recommendations 82 and 83). However the report did not make any recommendations

in relation to sentencing principles.

In its discussion paper on sentencing, the NSW LRC noted that while other Australian

jurisdictions had incorporated common law principles into sentencing legislation, the

commission was strongly o f the view that New South Wales should not go down this

path. As this recommendation puts New South Wales at odds with most other

Australian jurisdictions on this point, it is worthwhile stating the commission’ s reasons

for so deciding.

First, the reduction o f such common law principles to statutory form was said to be

likely to “ stultify” the development of the law, especially if such consolidation was

taken as some form of code and resulted in the abrogation of the wide sentencing

Freiberg and Ross, Sentencing Reform and Penal Change: The Victorian Experience, above n 3, 199.

NSWLRC Discussion Paper No 33 (Sentencing), above n 266.

NSWLRC Report No 79 (Sentencing), above n 266.

Crimes (Administration o f Sentences) Act 1999, Crimes (Sentencing Procedure) Act 1999; Crimes Legislation Amendment (Sentencing) Act 1999.

86

discretion, such form of discretion being seen as desirable and indeed necessary. The

sentencing discretion was seen as being constrained if reduced to statute, and this would

compromise the “ flexibility and evolutionary nature of the common law discretion, as

well as its ability to adapt to societal changes” .321

Secondly, the common law purposes and principles of sentencing were not seen to be in

need of reform, and such an attempt was perceived as likely to fail.322 An example

given of such a “ failure” was the exclusion of general deterrence from the ALRC ’s

recommendations on the purposes of punishment, and subsequent exclusion from s 16A

Crimes Act 1914 (Cth); which, according to the NSW LRC “proved unworkable in

practice and has led to its judicial reinstatement” .323 Thirdly, it was said to be

impossible to provide an exhaustive list of factors to be taken into account.324 Fourthly,

it was stated that “ it follows that reduction of the common law to statutory form serves

no obvious purpose in terms of law reform” , and that in doing so, there was perceived to

be a real risk o f obfuscating the law.325

A number o f these assertions do not hold up to close scrutiny. Even if the need for a

wide sentencing discretion is taken as justified,326 it does not mean that such discretion

will be constrained by sentencing legislation setting out sentencing purposes, principles

and factors to be taken into account. Such legislation does not necessarily lead to the

“ stultification” o f the development o f the law, but allows clear guidelines to be laid

down for all parties in the process to follow. Using the example of the “ failure” of the

320321322323

324325326

327

NSWLRC Discussion Paper No 33 (Sentencing), above n 266, 27.

Ibid 27-28.

Ibid 28.

Ibid. This has indeed been the case, but arguably not for the reason of being “unworkable”, but because the judges themselves saw general deterrence as necessary. See earlier discussion of the judicial insertion of general deterrence into s 16A Crimes Act 1914 (Cth), and chapter 1 at 5.3.

Ibid 29.

Ibid.

This is a matter of substantial debate. See, for example, the virtual abolition of judicial discretion in many of the US jurisdictions, amid assertions that a wide sentencing discretion in the hands of the judges was causing widespread disparity. See generally Tonry, Sentencing Matters above n 258, and discussion on structuring discretion in chapter 5 at part 4.

See clarification of the meaning of “guidelines” in chapter 5 at 1.1.

87

omission o f general deterrence is likewise questionable, based as it is on the perception

of some judges that general deterrence should remain a purpose for sentencing, despite

the ALRC specifically deciding, and the legislation clearly stating the opposite.328

Finally, the fact that it may be impossible to provide an exhaustive list of factors to be

taken into account does not mean that such a list should not be attempted, or that a non-

exhaustive list is not a useful guideline. The virtue of having such guidance is that it is

clear to all parties which factors are appropriate. Such a list need not be exclusive, and

in fact few are.329

The New South Wales Parliament has at least with the 1999 legislation acknowledged

the need for administrative and procedural guidance in sentencing, which is to be

welcomed. Although that State has from time to time been subjected to law and order

rhetoric,330 and “ truth in sentencing” calls,331 it has also, rather ironically, been the birth­

place o f guideline judgements in Australia in 1998,332 a judicially led device for

structuring judicial discretion. These developments are discussed and analysed in

chapter 5.

See above, n 323.

See eg, s 9(2)(q) Penalties and Sentences Act 1992 (Qld).

See Hogg and Brown, above n 28, chapter 2.

See Sentencing Act 1989 (NSW), and comments in Janet Chan, “The New South Wales Sentencing Act 1989: Where Does Truth Lie?” (1990) 14 Criminal Law Journal 249; David Brown, “Battles Around Truth: A Commentary on the Sentencing Act 1989” (1992) 3 Current Issues in Criminal Justice 329; Ivan Potas, “The Sentencing Act 1989: Impact and Review”(1992) 3 Current Issues in Criminal Justice 318; George Zdenkowski, “Sentencing Reform in NSW - An Opportunity Missed” (1990) 5 Campaign fo r Criminal Justice 4; Michael Cain and Veronica Roby, The Impact o f Truth in Sentencing Part 1 - The H igher Courts, Sentencing Trends No 2, Judicial Commission of NSW, Sydney, 1992; Ann Aungles, ‘“Truth in Sentencing’ : Truth or Half Truth” in ‘Truth in Sentencing’: Truth or H alf Truth, Proceedings of the Institute of Criminology No 78 Sentencing, Sydney, University of Sydney Faculty of Law, 1988. See also discussion of “truth in sentencing” in Brown et al, Criminal Laws, above n 66, at 12.2.3. As to “truth in sentencing” in Victoria, see Freiberg and Ross, Sentencing Reform and Penal Change: The Victorian Experience, above n 3; chapter 9.

See R v Jurisic (1998) 45 NSWLR 209.

88

2.4 Canada

The sentencing system in Canada is not unlike that o f Australia, and research conducted

in that jurisdiction is useful as a comparison, and to inform the study of sentencing

generally.333 * * As noted below, research in Canada was influential in the Australian

reviews o f sentencing undertaken in the 1980s, and is discussed in that context here.

The Canadian Sentencing Commission conducted a major review of sentencing inOO/t

Canada in 1987. As was the case for both the ALRC and Victorian Sentencing

Committee reports, the Canadian Sentencing Commission Report provides the

sentencing scholar with a wealth of information and the benefit o f detailed and careful

research. Although the full recommendations were never implemented, new sentencing

initiatives were introduced by Bill C-41 in 1996, which resulted in Part XXIII of the'IOC

Criminal Code of Canada. One of the essential components of the Bill was the

statement of purposes and principles o f sentencing,336 however according to Anthony

Doob, the “reforms” may not in fact have changed anything.337

For recent research carried out in Canada, see eg, Julian Roberts, “Sentencing Research in Canada” (1999) 41 Canadian Journal o f Criminology 225; Julian Roberts and Andy Birkenmayer, “Sentencing in Canada: Recent Statistical Trends” (1997) 39 Canadian Journal o f Criminology 459; and essays in Julian Roberts and David Cole (eds), Making Sense o f Sentencing, University of Toronto Press, Toronto, 1999. See also research into judicial methodology in John Hogarth, Sentencing as a Human Process, University of Toronto Press, Toronto, 1971, and Peter McCormick and Ian Greene, Judges and Judging, James Lorimer and Company, Toronto, 1990, discussed further in chapter 1. In relation to restorative justice programs and changes, see Carol La Prairie, “Some Reflections on New Criminal Justice Policies in Canada: Restorative Justice, Alternative Measures and Conditional Sentences” (1999) 32 The Australian and New Zealand Journal o f Criminology 139.

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987. This was not however the first review of sentencing in Canada, see Anthony Doob, “Transforming the Punishment Environment: Understanding Public Views of What Should be Accomplished at Sentencing” (2000) 42 Canadian Journal o f Criminology 323.

See description of the changes in David Daubney and Gordon Parry, “An Overview of Bill C-41 (The Sentencing Reform Act)” in Julian Roberts and David Cole (eds), Making Sense o f Sentencing, University of Toronto Press, Toronto, 1999. See also a comprehensive description of the changes in Julian Roberts and Andrew von Hirsch, “Statutory Sentencing Reform: The Purpose and Principles of Sentencing” (1995) 37 Criminal Law Quarterly 220.

See s 718 of the Canadian Criminal Code.

Doob, above n 334.337

89

When the Canadian government enacted Bill C-41, it introduced into s 718 of the

Criminal Code what it called the “ fundamental purpose” o f sentencing. This purpose

was to “contribute, along with crime prevention initiatives, to respect for the law and

maintenance o f a just, peaceful and safe society by imposing just sanctions that have one

or more o f the following objectives” .338 * Section 718 then lists 10 sentencing

“ objectives” , which have been criticised as “ failing to inform judges as to the conditions

under which one objective should be emphasized at the expense o f the rest” , a

criticism which could also be fairly levelled at the statement of purposes in s 9(1) of the

Penalties and Sentences Act 1992 (Qld).340 A “ fundamental principle” is given in s

718.1, which is that “A sentence must be proportionate to the gravity o f the offence and

the degree o f responsibility of the offender.” This statement of proportionality is then

followed by a list o f other sentencing principles. Doubts have however been expressed

whether these changes in total will provide direction and promote consistency in3 4 1sentencing.

The influence of the 1987 Canadian report can be seen in the Victorian Sentencing

Committee Report, as noted by the frequent references in the latter report to the

Canadian research. The Canadian Sentencing Commission Report is discussed further

in subsequent chapters.

338

339340341

This statement has been criticised on the basis of confusion of the seemingly opposite purposes, see Julian Roberts and Andrew von Hirsch, “Legislating the Purpose and Principles of Sentencing” in Julian Roberts and David Cole (eds), Making Sense o f Sentencing, University of Toronto Press, Toronto, 1999, 52-53.

Ibid 53.

See also discussion on the “cafeteria” approach to sentencing purposes in chapter 6 at 1.1.

Roberts and von Hirsch, “Legislating the Purpose and Principles of Sentencing”, above n 338, 59-60.

90

3 P e n a lt ie s a n d S e n te n c e s A c t 1992 (Qld)

The Penalties and Sentences Act drew together haphazard practices in

sentencing. The Act may be much criticised but represents a substantial effort to

try to get things right.342

3.1 Introduction

As noted above in the earlier discussion on sentencing law in Queensland, while

previously there were in existence legislative provisions dealing with sentencing, none

of these contained sentencing purposes or principles by which sentences were to be

imposed, nor were sentencing provisions ever fully detailed and put together in the one

Act. Sentencing provisions were scattered amongst different Acts, principally the

Criminal Code, but not easily accessible in the one place.343 The concept of a dedicated

sentencing act was in fact new to all Australian jurisdictions, and most common law

jurisdictions.

With the conservative leanings o f the State for long periods of the twentieth century, it

was hardly surprising that criminal law reforms, including the Penalties and Sentences

Act, were not introduced until a reformist Labor Government came to power in 1989.

The change of government came about following a period of political instability after

the handing down of the findings of the Fitzgerald Inquiry into police corruption in

1989,344 and the incoming Goss Government promised long overdue reform of many of

the State’ s institutions. A new Criminal Code was introduced by that Government in

Judge M.

See the Fitzgerald Report, above n 154.

S e e co m m e n ts by th e A ttorn ey-G en eral in the se c o n d read in g sp eech: Q u een slan d ,P a r lia m e n ta r y D e b a te s , L e g is la t iv e A ssem b ly , 5 N o v e m b e r 1 9 9 2 , 159 .

344

91

1995345 after a long period of development and consultation, however that Code was

never proclaimed because of a change in government.346 A major revision of the 1899

Code was instead undertaken, and major changes enacted in 1997.347 The introduction

of the Penalties and Sentences Act 1992 (Qld) was also part o f that reform process.

The Penalties and Sentences Bill was originally presented to the Queensland Legislative

Assembly by the Minister for Justice and Attorney-General and Minister for the Arts,

the Honourable Dean Wells on 6 August 1992.348 The second reading speech took place

on the 5 November 1992, with debate on the Bill being adjourned to 13 November

1992. According to the Attorney-General, the Penalties and Sentences Bill was

introduced as part o f the Goss Labor Government’ s continuing commitment to ‘ensuring

that all Queenslanders have a criminal justice system that is comprehensive, consistent

and designed to come to grips with contemporary law and order issues’ .349

Debate on the Bill resumed on 13 November 1992.350 At that time, the Opposition

indicated that they would not be opposing the legislation, and in fact supported parts ofO r I

it strongly. In the debate which ensued, the Opposition took the opportunity to raise

law and order issues which had figured prominently in the election campaign

immediately before that session of Parliament, making statements such as “the

community is now living behind bars while criminals roam free” ; and “ [PJeople no

longer feel safe to walk the streets o f this city” .352

Particularly contentious during the debate was the proposal for indefinite sentences in

Part 10 of the Bill. The introduction o f this measure occurred despite considerable

345346

347348349

350

Criminal Code 1995 (Qld).

See generally, Sally Kift, “How Not to Amend a Criminal Code” (1997) 22 Alternative Law Journal 215.

See Criminal Law Amendment Act 1997(Qld).

The Bill lapsed the first time due to elections being called.

Queensland, Parliamentary Debates, Legislative Assembly, 5 November 1992, 159 (Hon Dean Wells, Minister for Justice and Attorney-General and Minister for the Arts).

See Queensland, Parliamentary Debates, Legislative Assembly, 13 November 1992, 689 - 711.

Ibid 689.351

92

opposition by the legal profession and other commentators.353 In debate on the Bill, the

Opposition questioned some procedural aspects relating to indefinite sentences, but

without voicing any real opposition, as the National and Liberal Party Coalition

speakers were seizing a valuable chance to push a hard line on law and order issues and

appeared not to wish to be seen to be opposing the proposal.354

The Penalties and Sentences Act 1992 (Qld), no 48 o f 1992, was assented to on

November 1992, with most of the Act coming into operation by the end of 1992.355

3.2 The philosophy behind the Act

The Penalties and Sentences Bill was a significant reform for sentencing in Queensland,

both as a much needed consolidation of the law, but also as an opportunity to lay down

clear philosophical guidelines and principles behind the sentencing process. In the

Parliamentary Debates, the Attorney-General not only asserted his own “rational

utilitarian sentencing philosophy” but also declared that retribution did not form part

of the Bill.357

The Attorney-General, the Honourable Dean Wells, was keen to emphasise the virtuesOCQ

of the Bill in his second reading speech:

Ibid 690-691 (Denver Beanland).

Concerns of the Queensland Bar Association, the Queensland Law Society and the Civil Liberties Council were noted, see Queensland, Parliamentary Debates, Legislative Assembly, 13 November 1992, 691.

Ibid 689-694.

Sections 1-2 commenced on the date of assent. Approximately half of the Act commenced on the 27 November 1992 with the other half commencing on the 18 December 1992, with the exception of Part 6 Intensive Correction Orders, which commenced on 1 September 1994 owing to a delay with administrative arrangements.

See Queensland, Parliamentary Debates, Legislative Assembly, 13 November 1992, 703.

See discussion of whether retribution is part of the Penalties and Sentences Act 1992 (Qld) in chapter 6 at 4.1.

Q u e en sla n d , Parliamentary Debates, L eg is la tiv e A sse m b ly , 5 N o v e m b e r 1 9 9 2 , 1 5 9 -1 6 0 .

93

As part of this Government’s continuing commitment to ensuring that all

Queenslanders have a criminal justice system that is comprehensive, consistent

and designed to come to grips with contemporary law and order issues, the

Penalties and Sentences Bill marks a new stage in the modernisation of

Queensland’s criminal law.

The Bill which I am pleased to present to this honourable House today

consolidates all types of penalties and sentences into one enactment, which

contains a number of significant reforms in order to meet a rapidly changing

Queensland society and which, as far as can be achieved in a criminal statute, is

expressed in a uniform and more readily understood fashion than the confusion

of enactments couched in archaic language that this Bill replaces.

There are a number of significant reforms contained in the Bill.

For the first time in this State, governing principles are provided to which

sentencing courts must pay regard in imposing sentences on offenders.

Sentencing guidelines are also provided by the Bill which will seek to guide the

courts of all criminal jurisdictions towards applying common criteria so that a

higher degree of conformity and consistency can be achieved in sentences

imposed throughout our State.

The Attorney-General then drew the attention of the House to the Preamble to the Bill in

debate on 13 November 1992:359

I take this opportunity to draw the attention of the House to the Preamble, which

defines the concept of justice. It states -

359 Queensland, Parliamentary Debates, Legislative Assembly, 13 November 1992, 703-704.

9 4

W H ER EA S -

Society is entitled to protect itself and its members from harm;

The criminal law and the power of courts to impose sentences on

offenders represent important ways in which society protects itself and its

members from harm;

Society may limit the liberty of members of society only to prevent harm

to itself or other members of society.

The statements by Wells in the second reading speech, together with the Preamble, have

attracted criticism by Brett Mason on the basis that incorporating statements from John

Stuart Mill in the Preamble, “Society may limit the liberty of members of society only to

prevent harm to itself or other members of society”, is a “creative exploitation of Mill’s

principle”. Mason also denies the validity of W ells’s assertions that retribution does

not form part of the A ct.361

Wells elaborated on his views regarding the Act and its purposes in an interview

conducted in 1996.362 In particular, this was in relation to his personal views and beliefs

as a philosopher.363

Obviously what that’s doing is importing John Stuart Mill’s harm principle. The

preamble which I wrote was something that sounded much more like John Stuart

Mill than this preamble, but I can’t protect statutes from the art of the

parliamentary draftsman who is determined to write it in plain English. Not that

Brett Mason, “A Not So Rational Philosophy: A Critique of the Penalties and Sentences Act 1992 (Qld)” (1995) Queensland University o f Technology Law Journal 67, 72-73.

See statements about retribution above, and see also further discussion of this in chapter 6 at 4.1.

The Honourable Dean Wells, Interview with the author, Parliament House, Brisbane, Queensland, 12 September 1996 (See Appendix). To be fair to Wells, it must also be pointed out that the interview was conducted in September 1996, four years after the passage of the Bill, and his speeches in Parliament, and while his party was in opposition. In the 1998 Queensland State elections, the Labor Party was returned to government, and Wells was appointed Minister for Education for that term.

The Honourable Dean Wells, Interview with the author, Parliament House, Brisbane, Queensland, 12 September 1996. The former Attorney-General was previously a university lecturer in philosophy. This interview is further discussed in chapter 6.

95

M ill’s language wasn’t plain, it’s just that it was a little bit more elegant, but

nevertheless it’s the same content; that is, clearly importing a philosophical

consideration into the Bill.

Under the amendments to the Acts Interpretation Act it is now possible for a

court to take into account the second reading speech of the Minister introducing

the Bill, and so for that reason I put in these words which were straight out of a

philosophy lecture room. “The Bill is based on the idea of protecting society

from harm. Notions such as the doctrine of proportionality which is derived

from the philosophy of retributivism is not part of the Bill” . So what I was

clearly doing was excluding the retributivist philosophy which actuates the

decisions of many judges. Now for those judges who actually understand it, and

have this drawn to their attention, they will know that it’s no longer on as a

result of this Bill for them to clap some middle aged menopausal woman in jail

for a week to teach her a lesson for shoplifting. It’s not on to get some young

larrikin and slot them for a fortnight for doing something which actually has not

harmed any person, but has nevertheless revealed anti-social tendencies, just to

teach them a lesson. The purpose of punishment has got to be soundly based in

what the protection of society requires.

The purpose of government is to ensure, as far as possible, that every individual

has an equal opportunity of a happy, satisfying and fulfilling life. The purpose

of a legal system is to protect society from harm and to protect its individual

members from harm. To that end, people have to come before courts and they

have to be sentenced, and the legitimate objectives of that sentencing would be

those which serve the purpose of protecting society from harm. Those might be

imprisonment for the purposes of deterrence, or imprisonment for the purposes

of incapacitation, that is, preventing the person from being able to do it again.

Those are the circumstances in which you would imprison. Other devices would

be used with an attempt to reform the person and that would of course, have to

be on a sliding scale, or on shifting sands would perhaps be a better metaphor,

according to the particular circumstances of the case. One would have to make a

96

prognosis in the case of each person what would be best calculated to reform

them. Judges of course do that all the time when they make sentencing

decisions. They say this is your first offence and therefore we’ll give you

another chance. That kind of remark is anticipating what is going to be most

likely to effect the reform, the rehabilitation of the offender, and whether you use

a community service order, whether you use a fine, whether you use home

detention, whether you use a variety of other options that are available to judges

and other sentencers these days; is going depend on all the circumstances of the

case. It becomes an imprecise art of course, because human beings are infinitely

diverse creatures, but even in a sea of imprecision you can nevertheless divine

general rules which are most likely to effect the optimum desiderata.

3.3 Structure

Although not formally described as a code, the Penalties and Sentences Act 1992 (Qld)

sets out comprehensively the sentencing laws, which are to be applied in Queensland.

The purposes of the Act are set out in s 3, which reads as follows:

Purposes3. The purposes of this Act include -

(a) collecting into a single Act general powers of courts to sentence

offenders; and

(b) providing for a sufficient range of sentences for the appropriate

punishment and rehabilitation of offenders, and in appropriate

circumstances, ensuring that protection of the Queensland

community is a paramount consideration; and

(c) promoting consistency of approach in the sentencing of offenders;

and

(d) providing fair procedures -

(i) for imposing sentences; and

97

(ii) for dealing with offenders who contravene the conditions

of their sentence; and

(e) providing sentencing principles that are to be applied by the

courts; and

(f) making provision so that offenders are not imprisoned for non­

payment of fines without the opportunity of obtaining a fine

option order; and

(g) promoting public understanding of sentencing practices and

procedure; and

(h) generally reforming the sentencing laws of Queensland.

Section 9 specifically sets out guidelines which are to be followed. Section 9 (1 ) lists the

purposes for which sentences may be imposed on an offender. Significantly, these are

listed as the only purposes for which sentences may be imposed. There is no attempt to

list a paramount purpose, nor is there any guidance or restrictions on the way in which

they are to be used.364 Section 9(1) reads as follows:

9(1) The only purposes for which sentences may be imposed on an offender

(a) to punish the offender to an extent or in a way that is just in all the

circumstances; or

(b) to provide conditions in the court’s order that the court considers will

help the offender to be rehabilitated; or

(c) to deter the offender or other persons from committing the same or a

similar offence; or

(d) to make it clear the community, acting through the court, denounces the

See discussion on the “cafeteria system” in chapter 6 at 1.1, and also criticism of s 718 of the Canadian Criminal Code, noted at 2.4 above.

98

sort of conduct in which the offender was involved; or

(e) to protect the Queensland community from the offender; or

(f) a combination of 2 or more of the purposes mentioned in paragraphs (a)

to (e).365 *

Section 9(2) then goes on to give a comprehensive list of factors to which the court must

have regard in passing sentence. The list is not exhaustive however, as s 9(2)(q) states

that the court may also take into account “any other relevant circumstance”. In addition,

s 9(3) has the effect that additional factors in s9(4) apply primarily where the charges

involve violence against another person or are the result of physical harm to another.

The sections that follow in the Act provide general sentencing principles. Section 10

states that the court must give reasons when sentencing an offender to a term of

imprisonment; s 11 lists factors in determining the character of an offender;367 s 12

gives the court a discretion in certain instances whether or not to record a conviction;368

and s 13 explains how a plea of guilty is to be taken into account.

Under s 13, a court must take a guilty plea into account and may reduce the sentence

accordingly, and the court may take into account the time at which the offender pleaded

guilty or notified such an intention to the authorities.369 Remorse is not an expressed

factor to be taken into account under s 13,370 although it expressly becomes a relevant

factor where the offence comes within the parameters of s 9(3) because violence has

Section 5 of the Sentencing Act 1991 (Vic) has a list of sentencing purposes in almost identical terms.

See discussion below. These changes were introduced in 1997.

See also s 9(2)(f). Note also that the wording in s 11 is almost identical to s 6 of the Sentencing Act 1991 (Vic).

See interpretation of how to apply the discretion under this section in R v Brown [1994] 2 Qd R 182, and R v Briese, Ex parte Attorney-General of Queensland [1998] 1 Qd R 487.

Sees 13(2).

Remorse has rarely been referred to in the appellate cases in Queensland since the implementation of the Penalties and Sentences Act in 1992. The High Court has however recently reinforced the importance of remorse in relation to pleas of guilty: see Siganto v The Queen (1998) 194 CLR 656. See also Michael Proeve, David Smith and Diane Niblo,

99

been used in the commission of the offence, or physical harm has ensued.371 * * Although s

13 does not mandate a reduction in the quantum of sentence as a result of a guilty plea,

this is clearly the intention of the section, and the Queensland courts in practice

exercise this discretion routinely, often by the addition of a recommendation for'Yl'i

parole.

Section 13A of the Penalties and Sentences Act 1992 (Qld), added in 1997, gives

specific guidelines for a reduction in sentence where an offender has given an

undertaking to cooperate with law enforcement agencies in a proceeding for an offence.

This would normally be, but is not limited to, the situation when an offender agrees to

give evidence against a co-offender.374 In a similar way to the operation of s 13, the

court is not obliged to give a discount for such co-operation,375 but again it is clearly the

intention of the section that this should normally occur.376

The other procedural sections in Part 2 are s 14; (preference given to compensation for

victims where a fine is also imposed and offender cannot pay both); and s 15 which

states that a court may receive any information that it considers appropriate to enable it

to impose the proper sentence.377

“Mitigation Without Definition: Remorse in the Criminal Justice System” (1999) 32 The Australian and New Zealand Journal of Criminology 16.

Refer s 9(4)(i).

In Taylor and Napatali (1999) 106 A Crim R 578, the court held that it was clearly foreshadowed by s 13 that the sentence would be reduced by virtue of the plea of guilty.

See R v Corrigan [1994] 2 Qd R 415, and R v Maxfield (2000) 114 A Crim R 249.

If the offender, without reasonable excuse, does not cooperate under the undertaking, the original sentencing proceeding may be re-opened: s 188(2).

Eg, where the evidence does not have much or any value, R v McQuire and Porter (No 1); Ex parte Attorney-General of Queensland (unreported, Qld Court of Appeal, 8 June 1999).

R v Packer; Ex parte Attorney-General of Queensland (unreported, Qld Court of Appeal, 6 May 1998).There has been some recent controversy on the standard of proof for disputed facts in Queensland since the case of R v Morrison [1999] 1 Qd R 397, which held that the judge should determine disputed facts adverse to the accused beyond reasonable doubt. If the fact would favour the accused and result in a less heavy sentence, the balance of probabilities would suffice. This decision resulted in considerable debate, culminating in the Parliament legislating to overturn the decision: see Evidence Amendment Act 2000, which inserted s 132C into the Queensland Evidence Act. See also discussion by the High Court on onus and standard of proof in Olbrich v The Queen (1999) 73 ALJR 12; and commentary in Stephen Odgers, “Criminal

100

The Act then sets out penalties which can be applied; non-custodial, community based,

and custodial. No system of sanction hierarchies exists, however the Act could be

interpreted as contemplating this. In brief, the sentencing options are:

• Releases, restitution and compensation: Part 3

• Fines: Part 4

• Intermediate orders, including probation and community service orders: Part 5

• Intensive correction orders: Part 6

• Suspended imprisonment: Part 8

• Imprisonment: Part 9

• Indefinite sentences: Part 10

The Act thus has a variety of sentencing options, both custodial and non-custodial. Both

the introduction of intensive correction orders and the re-introduction of suspended

sentences have widened the sentencing options available to the courts.

3.4 Amendments to the Act

With the exception of the major amendments in the P e n a lt ie s a n d S e n te n ces (S e r io u s

V io le n t O f fe n c e s ) A m e n d m e n t A c t 1997, introduced by the conservative National and

Liberal Party Coalition Government, the P e n a lt ie s a n d S e n ten ces A c t has been subject to

Cases in the High Court of Australia” (1999) 23 Criminal Law Journal 376, 376-380, and Kate Warner, “Sentencing Review 1999” (1999) 24 Criminal Law Journal 355, 364-369.

In relation to sanction hierarchies, see Arie Freiberg and Richard Fox, “Sentencing Structures and Sanction Hierarchies” (1986) 10 Criminal Law Journal 216; Richard Fox and Arie Freiberg, “Ranking Offence Seriousness in Reviewing Statutory Maximum Penalties” (1990) 23 The Australian and New Zealand Journal of Criminology 165; and Richard Fox, “Order Out of Chaos: Victoria’s New Maximum Penalty Structure” (1991) 17 Monash University Law Review 106.

101

only minor amendment since commencement in late 1992. The 1997 amendments were

part of changes made to introduce “ ...within the existing legislative framework, a

separate regime for the punishment of criminals convicted of serious violent offences,

giving effect to a number of government election promises”.379 The purposes in s 9(1)

were also amended, with the word “discourage” in s 9(1 )(c) replaced by “deter” ; and in s

9 (l)(d ), “does not approve o f ’, was replaced by “denounces”. There was no specific

mention in the Attorney-General’s second reading speech as to why s 9(1) was

amended, except by inference that the new terminology was more representative of

conventional notions of deterrence and denunciation.380 *

The serious violent offences amendments came into effect on 1 July 1997, and have had

a significant impact on the sentencing system. The principal purpose of the changes was

to introduce Part 9A C o n v ic t io n s o f S e r io u s V io le n t O ffe n c e s into the P e n a lt ie s a n d

S e n te n ces A c t 1992 (Qld). Under Part 9A, offenders convicted of a serious violent

offence as so defined, or declared to be so convicted; must serve 80% of their sentence

of imprisonment (or 15 years, whichever is the lesser), before being eligible for-5 01

parole. Such offenders are not entitled to the benefit of any remissions while in

prison.382

The P e n a lt ie s a n d S en ten ces A c t contains a schedule of 4 6 offences from the C r im in a l

C o d e which are labelled “serious violent offences”. The degree of violence involved in

the offence (if any) is irrelevant in this categorisation, despite the fact that some of the

offences would not normally fall into the category of “serious violent offences” as

would be commonly described.383 If an offender is convicted of an offence in the

Queensland, Parliamentary Debates, Legislative Assembly, 19 March 1997, 595. See also Sentencing Act 1991 (Vic) Part 2A Serious Offenders, which includes a category of serious violent offenders. These amendments were also made in 1997.

See detailed discussion of these concepts in chapter 6 at parts 6 and 7.

See Corrective Services Act 1988 (Qld) s 166.

Section 161D. Normally an offender would be entitled to have up to one third of their sentence remitted for good behaviour: s 21 Corrective Services Regulations.For example: s 328A Criminal Code, dangerous operation of a motor vehicle; s 339 Criminal Code, assault occasioning bodily harm; s 5 Drugs Misuse Act, trafficking in a dangerous drug; s 8 Drugs Misuse Act, producing dangerous drugs.

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Schedule and sentenced to 10 years or more imprisonment, they are automatically

convicted of a serious violent offence. The sentencing court has a discretion whether

or not to declare the offender convicted of a serious violent offence if the offender is

caught within s 161A(b). This applies if the offender is either convicted of an offence in

the schedule and sentenced to more than five, but less than 10 years jail; or if the

offender is convicted of an offence that involved the use of serious violence against

another person, or that resulted in serious harm to another person,385 and was sentenced

to a term of imprisonment for the offence.386

The other major change brought about by the 1997 amendments was the replacement of

the former ss 9(3 ) and (4)387 * with provisions complementing the new Part 9A. SectionTOO

9(3) provides that the principles in s 9(2)(a) do not apply to the sentencing of any

person for any offence that involved the use of, or counselling or procuring the use of, or

attempting or conspiring to use violence against another person; or that resulted in

physical harm to another person.389 Section 9(3) applies to many offenders who would

not be caught by the serious violent offences provisions in Part 9A, and potentially has

the effect of increasing the severity of their sentences, independent of the effect of Part

9A.

Section 9(4) provides that in sentencing an offender to whom subsection (3) applies, the

court must have regard primarily to the factors in subsection 9 (4 ).390 These factors

mainly relate to the protection of the community against the offender, and include such

384385

386

387

388

389

390

Section 161 A(a) Penalties and Sentences Act 1992 (Qld).

In all three instances, this includes counselling or procuring the commission of, or attempting or conspiring to commit the offence, or in the third instance, the serious violence.This can include offences not included in the Schedule. Its application also extends to offences in the Schedule where the offender was sentenced to less than five years’ imprisonment.

Formerly rehabilitatory in nature, including special provision for offenders under the age of 25 who had not been previously convicted.Principles that a sentence of imprisonment should only be imposed as a last resort and a sentence which allows the offender to stay in the community is preferable.

This does not mean however that such offenders must serve a sentence of imprisonment: Taylor and Napatali (1999) 106 A Crim R 578. Youth is still a relevant consideration: R v Lovell [1999] 2QdR79.

The general factors in s 9(2) also apply.

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matters as the risk of physical harm to any members of the community if a custodial

sentence were not imposed.

Although “truth in sentencing” as a catchphrase has never had much currency in

Queensland, (in contrast to New South W ales), these amendments are clearly

designed with that effect in mind, to ensure that the offender spends significantly more

of their sentence in prison, without the benefit of early release. The proposed repeal and

replacement of the Corrective Services Act, with consequent restrictions on parole and

remissions will have a similar effect.392

The provisions of the Penalties and Sentences Act 1992 (Qld) are discussed throughout

the ensuing chapters where applicable. The aims and purposes in s 9(1) are discussed in

detail in chapter 6. Whether or not the Act restricts judicial discretion, either generally

or through provisions such as Part 9A, is discussed via the judicial comments in chapter

5. Also in chapter 5, the sentencing dispositions in the Act are discussed in relation to

judicial opinions on their use.

4 Conclusion

Put simply, Australia was settled by the British to solve a law and order problem at

home. Ever increasing prisoner numbers caused by a repressive punishment regime

designed largely to protect property interests, the lack of somewhere to put them, and

severe overcrowding and shocking conditions on ancient and rotting prison hulks

moored on the Thames, forced the establishment of a prison colony on a remote island,

barely known, eight months away by sea. With the British arrivals came their law and

justice, and the subsequent imposition of this law on convicts and free settlers. These

laws were also applied to the indigenous people, whose own laws, rights to land and

unique culture were simply ignored. The scene when eleven ships sailed into Sydney

See n 331, above.See Corrective Services Act 2000, due to commence in 2001.

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Cove confronting the indigenous people who had been left alone to develop their unique

culture for at least 50 000 years, can only be imagined. But such was the reception of

the British and their law into Australia.

Queensland is a relatively new jurisdiction in terms of European law, with

approximately 175 years of European settlement. The origins of the State of

Queensland as we know it today were ignominiously as a convict settlement for the

worst offenders from the colony of New South Wales, of which it was a part until 1859.

Those dishonourable beginnings to European settlement launched in Queensland a

prosperous economy and solid growth.

Criminal law was fairly ad hoc and fragmented until the introduction of the Criminal

Code in 1899, which although not perfect, has served the State well up until the present

time and appears likely to continue to do so for some time yet. Queensland was one of

the leading Australian jurisdictions in terms of codification and development of the

criminal law, due largely in the early days to the influence of Sir Samuel Griffith who

was later to become Chief Justice of the High Court of Australia. A major reform of the

Criminal Code in 1995 failed to come to fruition; a major overhaul of the Code

occurring instead in 1997.

Sentencing law remained the province of the common law for nearly 100 years in

Queensland, until it was modernised and brought up to date with the introduction of the

Penalties and Sentencing Act in 1992. Queensland was one of the leaders in the

introduction of dedicated sentencing legislation. This has deliberately introduced a

systematic and structured sentencing regime for the State. Although much of what is in

the Act could be said to be a restatement of the common law, it has made significant

changes to the way offenders have been sentenced. The way in which the Act has been

interpreted and applied by the judiciary is discussed in the following chapters which

examine the sentencing process in detail through the eyes of the judges who must

administer it.

Chapter 3

Introduction to the judicial study and methodology

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1 Introduction

This study examines judicial methodology in the sentencing process by analysing

judicial perceptions and attitudes toward important issues such as discretion, aims and

purposes and public opinion. The aims, justifications and scope of the research have

already been described in chapter 1.

In chapter 1 there is also discussion of previous studies of judges and sentencing; in

particular those in Australia by the Australian Law Reform Commission,1 the Victorian

Sentencing Committee2 and Lovegrove;3 in the United Kingdom the Crown Court

Study;4 and in Canada, studies by Hogarth5 and McCormick and Greene.6 Some of

these studies have attempted to gain insight into sentencing via interviews with judges,

and have advanced compelling reasons for such research to be continued and

Peter Cashman, Sentencing Reform: A National Survey o f Judges and Magistrates: Preliminary Report, Law Foundation of New South Wales, Sydney, 1979; Australian Law Reform Commission, Interim Report into Sentencing Federal Offenders: Report no 15, Australian Government Publishing Service (ALRC 15), Canberra, 1980; Australian Law Reform Commission, Sentencing: Report No 44, Australian Government Publishing Service (ALRC 44), Canberra, 1988.Victorian Sentencing Committee, Sentencing: Report o f the Victorian Sentencing Committee, Attorney-General’s Department, Victoria, Melbourne, 1988.Austin Lovegrove, “An Empirical Study of Sentencing Disparity Among Judges in an Australian Criminal Court” (1984) 33 International Review o f Applied Psychology 161; Austin Lovegrove, Judicial Decision Making, Sentencing Policy, and Numerical Guidance, Springer-Verlag, New York, 1989; Austin Lovegrove, “Structuring the Judicial Sentencing Discretion: Some Empirical Considerations on Reforms” in Andros Kapardis (ed), Sentencing: Some Key Issues, La Trobe University Press (special issue of Law in Context vol 13(2) 1995), Melbourne, 1995; Austin Lovegrove, The Framework o f Judicial Sentencing: A Study in Legal Decision Making, Cambridge University Press, Melbourne, 1997.Andrew Ashworth et al, Sentencing in the Crown Court: Report o f an Exploratory Study, Occasional Paper no 10, Centre for Criminological Research, University of Oxford, Oxford, 1984.

John Hogarth, Sentencing as a Human Process, University of Toronto Press, Toronto, 1971.Peter McCormick and Ian Greene, Judges and Judging, James Lorimer and Company, Toronto, 1990.

6

106

nsupported. The relative scarcity of extra-curial statements on sentencing by judges,

with the exception of the occasional speech, conference paper or article, means that

interview-based research material can add valuable insights into judicial attitudes,

perceptions and beliefs to the sentencing literature.

In Queensland, as is the case with most jurisdictions, judges rarely reveal their own

views on the sentencing process in their published decisions; indeed, it would probably

be inappropriate to do so. In addition, sentencing decisions at first instance are not

“judgments”; they are not published in the same way as civil judgments of the court,

and are thus not readily available. In general, published reports of sentencing decisions

are limited to judgments of the Court of Appeal division of the Supreme Court of

Queensland. The judgments of the Court of Appeal in Queensland are, by necessity,

limited to the facts before the court, and rarely reveal information about the judges’

attitudes to, or perceptions of sentencing policy.

This study therefore uses interviews to seek a further understanding of these issues, and

argues that interviews are useful in achieving the objectives of the research, and likely

to convey unique insights. The enhanced understanding of the sentencing process

gleaned from this research has relevance and significance for commentators on

sentencing and the judges themselves; as well as to the community as a whole, which

has an interest in the proper functioning of the sentencing process.

The reasons for the selection of the District and Supreme Courts in Queensland have

already been detailed.8 This chapter describes the methodology for the judicial study,

including what research methods were chosen and why; what topics were chosen for

discussion in the interviews; the way in which the interviews were conducted; and how

the results were analysed and incorporated into the research as a whole.

See eg. Crown Court study, above n 4, 59.See chapter 1, part 4. See also discussions on the Magistrates Court below.

107

1.1 Organisation of Queensland courts

Criminal trials in Queensland are modelled on the British system of judge and jury, and

reflect the development of criminal law in Australia based on the British system which

it inherited by virtue of the history of Australia as a British colony.9 Queensland has

three levels of courts, Magistrates, District and Supreme. The Magistrates Court is at

the base of the court system and has jurisdiction in traffic offences, simple offences,10

and preliminary hearings for serious offences in the form of committal proceedings.11 *12Less serious indictable offences can be heard summarily in the Magistrates Court.

Magistrates sit alone to hear criminal trials and pass sentence.13 Serious criminal

matters are heard in either of the superior courts, the District or Supreme Court,

depending on the charge.14 All criminal matters are heard by judge and jury in the

superior courts, but sentence is passed by a judge only; whether or not the sentence is

imposed after a trial, or the offender has proffered a guilty plea to the indictment.

Matters in either superior court are heard on indictment, which is a document containing

the charge, reduced to writing.15

Judges in the Supreme and District Courts were chosen for this study rather than

magistrates working in the lower court for a number of reasons. There are a large

number of magistrates appointed to the Magistrates Court, spread throughout the State

of Queensland. As magistrates deal mainly with minor offences, there is comparatively

less scope for discretion and variety in the sentences handed down; that is, the

magistrate will often be sentencing within a narrow range. For these reasons, it was

See discussion in chapter 2.Section 22A Justices Act 1886 (Qld). “Simple offences” and “summary offences” are the same thing. The term “summary offence” is seen more commonly in other Australian jurisdictions, however on occasions the terms are used interchangeably in Queensland.Committal proceedings are the examination of witnesses in relation to an indictable offence where a decision is made as to whether there is sufficient evidence to put the defendant on trial (in a higher court) for an indictable offence. See s 104 Justices Act 1886 (Qld).Either at the election of the prosecution or the defence, depending on the nature of the charge: ss 552A and 552B Criminal Code (Qld). As to the criminal practice of the Magistrates Court in Queensland, see generally Geraldine Mackenzie, Summary Offences, Law and Practice Queensland, Looseleaf, LBC Information Services, Sydney, 1995.See s 30 Justices Act 1886 (Qld); however at times hearings can take place in front of two justices of the peace, and rarely, one justice: see generally Part 3 Justices Act 1886 (Qld).See s 202 Supreme Court Act 1995 (Qld); ss 60 and 61 District Court Act 1967 (Qld).Sections 560, 564, 565 Criminal Code (Qld).15

108

decided to limit the study to judges of the District and Supreme Courts. Other

considerations included the restricted criminal jurisdiction of the lower courts, the

limited time that magistrates have for reflection on the sentencing process, and the

number of magistrates in proportion to the scope and resources of the study, conducted

by a single researcher. This study does not therefore explore the perceptions of judicial

officers in the lower courts who carry out the majority of the sentencing work in the

Queensland criminal justice system, as this jurisdiction is beyond the scope of this

thesis.

A study was conducted of sentencing practices in the Magistrates Court in the 1980s in

the United Kingdom, the purpose of which was to examine the role of sentencing

principles as enunciated by the Court of Appeal in magistrates’ sentencing behaviour.16

That study exposed a number of revealing insights, including that there was “a

disturbing failure by magistrates to understand the circumstances in which certain

sentencing principles should be applied”.17 *

1.2 The Supreme Court

According to the Supreme Court o f Queensland Annual Report 1997-1998, the

Supreme Court comprises the Office of the Chief Justice, the Court of Appeal and the

Trial Division; a total of 25 judges at the time of the study in late 1998.19 The Court of

Appeal consists of the President and four Judges of Appeal, all of whom are

Ralph Henham, Sentencing Principles and Magistrates’ Sentencing Behaviour, Avebury, Aldershot, 1990, 1.

Ibid 181. See also earlier accounts of this study in Ralph Henham, “The Influence of Sentencing Principles on Magistrates’ Sentencing Practices” (1986) 25 The Howard Journal 190; and Ralph Henham, “The Importance of Background Variables in Sentencing Behaviour” (1988) 15(2) Criminal Justice and Behaviour 255. In relation to decision-making by magistrates in the UK, see also Pat Carlen, Magistrates’ Justice, Martin Robertson, London, 1976 (an observational study); and Kerry Barker and John Sturges, Decision Making in Magistrates’ Courts, Fourmat Publishing, London, 1986.

Supreme Court Queensland Chief Justice, Supreme Court o f Queensland Annual Report 1997- 98, Supreme Court of Queensland, Brisbane, 1998. The 1997-98 Annual Reports of both the District Court and Supreme Court are referred to and discussed here, as they are relevant to this study.

Ibid 8. It should also be noted that three of these judges did not sit in Brisbane, but at Rockhampton, Townsville and Cairns; as Central, Northern and Far Northern judges respectively.

109

permanently appointed to that court.20 * * In addition to these appointments, judges of the

Trial Division of the Supreme Court sit on the Court of Appeal on a rotational basis.

The criminal jurisdiction of the Supreme Court is limited to murder, attempted murder

and manslaughter, in addition to drug offences under State and Commonwealth law,

where a magistrate does not have jurisdiction to deal with the matter. The Supreme

Court has exclusive jurisdiction over these matters. This jurisdiction includes a number

of drug offences, which has been the subject of on-going criticism, particularly by the

Supreme Court.23

The appellate jurisdiction of the Court of Appeal in criminal matters has been limited by

the Courts Reform Amendment Act 1997 (Qld), with the result that now the court deals

mainly with appeals against matters heard on indictment in both the District and

Supreme Courts.24 According to the 1997-98 Supreme Court Annual Report, up to two

Trial Division judges are assigned to the Court of Appeal on a rotational basis, with the

Chief Justice also sitting.25 In relation to sentencing appeals, the Annual Report states

the following:

Ibid. An additional judicial position was created in the Court of Appeal in 1998, and an additional judge was appointed to the Court of Appeal from 3 August 1998 to bring the total of judges permanently appointed to that court to five (including the President).

See s 61 District Court Act 1967 (Qld), s 202 Supreme Court Act 1995 (Qld). The District Court does not generally have jurisdiction where the maximum penalty for the offence is more than 14 years, but a number of exceptions to this were introduced in 1997 (see s 61(2) District Court Act).

Under the Drugs Misuse Act 1986 (Qld), many drug offences (even relatively minor possession offences) have maximum penalties over 14 years, and therefore come under the jurisdiction of the Supreme Court.

According to the Chief Justice in the Supreme Court o f Queensland Annual Report 1997-1998: “The Supreme Court should in my view retain jurisdiction in relation to drug crime, but only with respect to its more serious manifestations: major importation, production and trafficking cases. Steps should be taken to revise the court’s jurisdiction to remove the less serious drug crime into the lower courts. The governing criterion is the maximum public use of this particular court’s expertise. The point has been made repeatedly over many years now. The Parliament should finally address it, in the public interest.” See Supreme Court Annual Report 1997-98, above n 18, 6.

Appeals from the Magistrates Court on indictable matters dealt with summarily which were previously heard by the Court of Appeal are now heard by a single Judge of the District Court pursuant to s 222 of the Justices Act 1888 (Qld). An appeal from the District Court to the Court of Appeal can be made under s 118 District Court Act 1967 (Qld).

Supreme Court Annual Report 1997-98, above n 18, 16.

110

Sentencing matters are nevertheless of great importance to the litigants and the

community. Commonly, because of preparation work done by judges prior to

hearing, judgments in sentence proceedings need not be reserved.26 *

Generally speaking, sentencing appeals from the Magistrates Court are heard by a single

judge of the District Court, and appeals from the District and Supreme Courts are heard

by the Court of Appeal, a division of the Supreme Court. Appeals can also be made to

the High Court of Australia from the Court of Appeal, but only in exceptional

circumstances and by the grant of special leave to appeal.28 Consequently, the Court of

Appeal is essentially the final appellate court for sentencing matters heard in

Queensland.

The 1997-98 Supreme Court Annual Report noted that in that year, there were 59 trials,

385 pleas of guilty and 78 other matters, for a total of 522 criminal matters heard in the

Supreme Court.29 The disposition rate was 92% within 12 months.30

1.3 The District Court

The District Court handles most criminal matters tried on indictment in Queensland, and

hence most of the sentencing load for serious criminal matters falls on this court. The

District Court handles all indictable criminal matters with the exception of those over

which the Supreme Court has jurisdiction, namely, murder, manslaughter, and some

drug offences.31 All sentencing appeals from simple offences, and indictable matters

heard summarily in the Magistrates Court, go to the District Court.32 Crown appeals

Ibid. See also discussion on reserving judgment and sentencing decisions in chapter 4 at 7.1.

See ss 668D, 668E and 669A Criminal Code.

See s 35 Judiciary Act 1903 (Cth); Such leave is only rarely granted in sentencing matters, see R v Lowe (1984) 154 CLR 606, an appeal from the Queensland Court of Criminal Appeal (as it was then).

Supreme Court Annual Report 1997-98, above n 18, 24.

Ibid.

See s 61 District Court Act 1967 (Qld), s 202 Supreme Court Act 1995 (Qld), and above n 21 and 22.

This is by virtue of the Courts Reform Amendment Act 1997 (Qld), and the consequent amendment of s 222 Justices Act 1888 (Qld). These appeals were previously heard by the Court of Appeal: Geraldine Mackenzie, Summary Offences, Law and Practice Queensland, Looseleaf, LBC Information Services, Sydney, 1995, para 1.10215.

I l l

from indictable offences heard summarily in the Magistrates’ Court can go directly to

the Court of Appeal.33 The District Court also has jurisdiction to handle

Commonwealth offences punishable by up to 14 years’ imprisonment.34

At the time of the study in November and December 1998, 35 judges (including two

acting judges), were appointed to the District Court, including the Chief Judge. Eleven

of these judges were appointed to centres other than Brisbane, with six of these sitting in

the south east Queensland region, and five in northern regions.

Of note in the Annual Report is the fact that of the 3 806 criminal matters disposed of in

the year, 2 914 were guilty pleas, and 341 were trials.35 The report also claimed a high

disposition rate of matters, with 97% disposed of within 12 months of presentation of

indictment.36

2 J u d ic ia l p a r t ic ip a t io n

Before undertaking the study, ethical approval was obtained from both Queensland

University of Technology and the University of New South Wales.37 Formal

permission from both ethics committees was required under the guidelines of both

universities. Permission from the Queensland University of Technology was required

by virtue of the researcher’s position as an academic staff member, and the University

of New South Wales by enrolment in that university’s doctoral program. Such studies

involving human subjects require strict conditions to be complied with, including

anonymity and the de-identification of information collected. Formal signed consent to

Section 669A Criminal Code (Qld).

See Chief Judge of the District Court, District Court o f Queensland Annual Report 1997-1998, District Court of Queensland, Brisbane, 1998, 5.

Ibid 7.

Ibid 9.

The QUT clearance was only required to be ratified by UNSW.

For the University of New South Wales ethical clearance, Associate Professor George Zdenkowski was required to be the applicant due to that university’s research ethics rules.

112

the interviews was also required from each judge as part of the university ethical

clearances, and this was obtained at the time of the interview.

Requests to undertake the study and for permission to approach the justices of the

Supreme Court and the judges of the District Court were respectively made to the Chief

Justice of Queensland, the Honourable Paul de Jersey, and the Chief Judge of the

District Court, his Honour Judge Shanahan. After permission to proceed was granted,

letters were sent to associates of all Supreme Court judges based in Brisbane, including

the Trial Division and justices of the Court of Appeal, and to all District Court judges.

After dispatch of the letters, telephone contact was made with each judge’s associate to

organise details of the interview. In total 31 judges, comprising 21 from the District

Court, and 10 from the Supreme Court were interviewed.

It should also be noted that a small percentage of judges declined the invitation to

participate in the project. In most of these cases, workload, absence on circuit, leave

and other commitments were cited as reasons for their inability to participate. In a

further two instances, the judges cited lack of experience for not wishing to take part. A

number of other judges initially agreed to be interviewed, but caseload, leave and other

commitments precluded their eventual participation.

Ultimately however, nearly two thirds of judges invited to take part did so,40 and the

response to the study was a positive one, both before and after the interviews. A

number of the judges who were unavailable to be interviewed expressed regret at being

unable to do so, and several of these judges telephoned personally in order to express

their apologies.

One judge declined to sign the consent form on the grounds of inappropriateness, but was nonetheless happy to be interviewed and for that fact to be noted on the consent form, and signed by the researcher. This departure was later confirmed as acceptable as part of the ethics clearance.

In total 52 judges were invited to participate and 31 took part in the study. As noted above, a number of the 52 judges were on leave or otherwise unavailable to take part.

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2.1 Supreme Court judges

Requests to participate in the study were sent to 21 Supreme Court judges41 appointed to

the court at Brisbane 42 Of these, a number were on leave and unable to participate. In

all, 10 Supreme Court judges were interviewed, from both the Trial Division and the

Court of Appeal. All of these interviews were conducted face to face by the researcher.

Because there are only five permanent members of the Court of Appeal,43 for reasons

of anonymity and confidentiality,44 it was not possible to separate involvement of

judges from this court from the other Supreme Court judges, in order to report the

number of Court of Appeal judges who took part in the study.

As noted above, in addition to those judges who are permanently appointed to the Court

of Appeal, all Supreme Court Trial Division judges sit on the Court of Appeal on a

rotational basis. Comments about sitting on appeal cases were made in the interviews

by a number of Supreme Court judges, many of whom were from the Trial Division. It

is important therefore that conclusions not be drawn that comments about sitting on the

Court of Appeal were made by judges solely appointed to that court; as this was not

necessarily the case.

2.2 District Court judges

In the case of the District Court, requests to participate in the study were sent to all

judges sitting in Brisbane and south-east centres which included Southport, Beenleigh,

Maroochydore and Ipswich. Requests for interview were sent in total to 31 District

Although there were in fact 22 Supreme Court judges appointed in Brisbane at that time, the name of one judge was not included in the list supplied by the Supreme Court. That omission was not discovered until after the study had taken place, and may have occurred because the judge was not available or on leave at the time.

Because of the decentralisation of the State of Queensland, Supreme Court judges (and judges of the District Court) are appointed to other centres throughout Queensland. Distance precluded their involvement in this study, as face to face interviews were considered desirable.

In addition, one of these judges was on leave overseas at the time of the study.In addition, it should be pointed out that the empirical research was carried out under ethical approvals from both the Queensland University of Technology and the University of New South Wales, both of which adhere to strict National Health and Medical Research Council guidelines on confidentiality and other matters.

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Court judges (including two acting judges). This included a number of judges who

were on leave; some of whom were unable to participate. In total, 21 interviews were

conducted with District Court judges (including one judge who was unable to be

interviewed due to time constraints, but responded with written answers to the

questions). Two of these interviews were conducted by telephone; all others were

conducted face to face by the researcher.

Figure 3.2 below represents the number of District Court judges interviewed and the

number of requests for interview. As with the Supreme Court, the number of judges on

leave is not separately represented, as some judges on leave indicated their willingness

and availability to participate, and did in fact do so.

2.3 Gender analysis

At the beginning of the study in November 1998, there were four female members of

the Supreme Court bench (including the Court of Appeal), and two female members of

the District Court.45 Because only six of the 52 potential interview subjects were

female, it was not possible to do any analysis of responses on a gender basis, both for

reasons of identification of the interview subjects and the validity of results based on

any such analysis.46 Similarly for identification reasons, it is not possible to specify

how many female judges took part in the study, or if in fact any took part.

2.4 Anonymity and confidentiality

Each judge was identified on the interview transcript by letter only (unconnected with

the judge’s name) in order to preserve anonymity. In general, in subsequent chapters

the judges are not identified according to which jurisdiction they came from, either

District or Supreme; firstly because there was little differentiation in the comments

made between the two jurisdictions, and secondly for reasons of identification. In the

Another female judge was appointed to the District Court in mid December 1998. A female member of the District Court was appointed President of the Court of Appeal on 3 August 1998. Although gender analysis of the results could not be carried out in this study, a United States study of the sentencing decisions of men and women judges found that women judges wereharsher than men. See Darrell Steffensmeier, “Women and Men Policymakers: Does the Judge’s Gender Affect the Sentencing of Criminal Defendants?” (1999) 77 Social Forces 1163.

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case of the Supreme Court where only 10 judges participated, there was a much greater

chance of the judge being identified by their comments if the fact that they were also

from the Supreme Court was revealed. In some instances, the judges identified

themselves as appointed to a particular level of court by their own comments, and this

has remained part of the transcript where appropriate.

3 R e s e a r c h d e s ig n

3.1 Qualitative research m ethodology

The research approach chosen for this study involved in-depth interviews with the

participants using open questions to discern their views on a number of issues. It is not

claimed that this methodology was the only one that could have been used. For

example, much would have been gained by observational studies, case studies and the

like.47 * Because of the limited scope of the project, it was decided that there was

substantial benefit in only conducting judicial interviews. As such studies are rare in

any case, the benefits in gaining more knowledge about judicial attitudes and

perceptions toward sentencing were thought to be considerable. Other researchers have48also noted the difficulties in attempting research strategies such as observations.

This judicial study was designed in conjunction with the supervisors to the research; one

an experienced legal researcher,49 and the other an experienced social scientist with

experience in qualitative research.50 Their contribution to the research design. is

acknowledged.51 In addition to the academic discussions on research design, two judges

were involved in preliminary discussions, and were sent a copy of the draft instrument

Note that these methods were used by a team of researchers in the Crown Court study, see Crown Court study, above n 4.

Henham, above n 16, 44-46. In that study, attempts to carry out sentencing exercises and courtroom observations were abandoned due to practical concerns and other issues.

George Zdenkowski, then an Associate Professor at the University of New South Wales, and formerly Commissioner in Charge of the Australian Law Reform Commission Reference into Sentencing (although not at the time of the judicial survey in the earlier part of the reference). See discussion of ALRC reports 15 and 44 in chapters 1 and 2.

Dr Simon Petrie, then Associate Professor and Head of School, Justice Studies, in the Faculty of Law at Queensland University of Technology.

In particular, Dr Petrie’s contribution to the design of the instrument and assistance with methodology design of the study is noted and acknowledged.

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on which they provided comments. Feedback from this process then informed the final

design of the instrument and methodology for the study.

In designing the study, the following assumptions were made:52

• That the judges would have limited time to participate in the study due to court and

other commitments;

• That because of this anticipated limited time, a long and detailed questionnaire

would not be appropriate because it may not have been completed in the interview

time;

• That there may be some reluctance on the part of the judges to participate;

• That somewhat less than 50% and probably only 30% of the available pool of judges

would participate;53

• That the judges may not be willing to answer a structured questionnaire;

• That the judges would have fairly firm views on many of the interview topics and an

opportunity should be given to them to state these views; and

• That while it may not be difficult to get the judges to state their views, it may be

difficult to direct the interview through more than a small number of questions.

These assumptions therefore shaped the research design. It was decided to keep the list

of questions as brief as possible to minimise the risk of not completing the questions in

each interview. It was also decided that open questions would be used; that is,

questions which did not provide a list of options from which to choose.54

In the event, several of these assumptions proved to be incorrect, to the benefit of the

research. While the judges did generally have limited time available, they were

generous with that time and very few of the interviews were rushed. In many cases, the

time made available for the interview was substantially more than that anticipated.

These were based on the previous experience of research by both supervisors, the local knowledge and experience of the researcher, and experience gleaned from previous studies. The assumptions were also based on discussions with the two judges who assisted with preliminary research design and methodology issues (as noted above).

Fortunately, this assumption turned out to be incorrect, with close to 60% of judges participating.

See generally, William Foddy, Constructing Questions fo r Interviews and Questionnaires, Cambridge University Press, Melbourne, 1993, chapter 10. See also 3.2.1 below.

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Frequently the interview time was extended at the instigation of the judge being

interviewed, due to their enthusiasm for discussing the subject matter.

There was very little reluctance on the part of the judges to be involved, in fact nearly

all judges invited to participate were enthusiastic about doing so, despite the fact that

some of these were ultimately unable to take part. In a couple of instances, where the

judge was initially guarded and perhaps a little reluctant about participation, this had

substantially changed by the end of the interview.

Most of the judges interviewed had strong views on the topics discussed, and tended to

speak at length about each them. This largely vindicated the decision to keep the

question list brief.

The use of a small number of general questions also had a number of advantages, as

although the list of questions had prior ethical approval and could not be deviated from

due to the conditions of the ethical clearance, it allowed substantial leeway on the part

of the judge to discuss topics as they wished, instead of having answers suggested to

them.

3.2 Research method (in-depth interviewing)

3.2.1 Open or closed questions

As noted above, the decision was made in this study to use open questions. Both open

and closed questions have advantages and disadvantages, and each method is suited to

different interview and research situations.55 Open questions allow the interview

subjects to answer according to their own perceptions of the question; without

suggestions on the part of the interviewer, and without being influenced by any

preconceptions of what the interviewer was asking for. In the context of the present

research, which was aimed at identifying judicial attitudes and perceptions, and

different approaches to judicial methodology in sentencing, suggesting the answers in

advance was clearly inappropriate.

55

56 Ibid.

Ibid 129.

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The other advantage in not suggesting answers to the judges was that it prevented

potential hostility toward the project if any of the judges thought that the answers werecn

predetermined and indicated any bias of the study. Because of the nature and

sensitivity of this research involving judges, the technique of using a general question at

the beginning asking them for their views on how they “see” the process of sentencing

was very successful in putting the judges at ease and ensured the success of the

interview. If the judge was wary at the commencement of the interview, as occurred in

a few cases, the open-ended questions allowed them the opportunity to feel free toco

express their views. It also allowed the judges to answer the questions in the way that

they saw fit, as opposed to being directed by the interviewer.39

The acknowledged disadvantage of this open-ended approach is that interview subjects

may each give different responses to the question, which reflect their understanding of

both the question and experience with that particular issue. This in turn can make

statistical and meaningful comparison between answers difficult.60 Although this

phenomenon did occur in the study, albeit to a limited extent, statistical analysis of the

responses was never intended in any event.

A related point is that several of the judges also spoke about issues which were not

specifically included in the interview questions. For example, the judges were not

asked questions about the role of victims in sentencing, but a number of judges

discussed this nonetheless. This meant that the responses from those judges could be

discussed, but that no comparisons could be made or conclusions drawn between those

judges who had discussed victims and those who had not; and only tentative

conclusions can be drawn on these topics.

The risk of non-cooperation in research involving judges generally was illustrated by the Crown Court study, where permission to proceed beyond a pilot study was refused: Crown Court study, above n 4, 5. Cf also the general reluctance, and sometimes hostility expressed by the Supreme Court judges in Victoria to the research conducted by the Victorian Sentencing Committee: see Victorian Sentencing Committee Report, above n 2.See also Foddy, above n 54, 129.

This had to be balanced against the assumption sometimes made in social science research that respondents find closed questions easier to answer: see Foddy, above n 54, 140.

Cf closed questions: ibid 128.60

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Some of the general drawbacks of the interview methodology using open questions

included the quantity, and sometimes disparity, of interview data collected, and

consequent difficulties in analysis and writing up of the responses. This necessitated a

broadening of the study, with the analysis of the data resulting in four chapters of

interview material; on the sentencing process, judicial discretion, aims and purposes,

and law and order. The decision was then made that the academic literature on these

areas would be considered alongside the judicial responses, and conclusions drawn from

this examination. The magnitude of this task necessitated selectivity in the literature

examined, and the emphasis remains therefore on the data from the judicial study and

the conclusions from these findings.

Had the study used closed questions with different objectives, quantitative analysis of

the data would have been possible, and no doubt a different set of conclusions reached.

In order to successfully complete such research however, a far bigger study would have

been required, with more resources and a research team from a number of different

disciplines. In any event, open questions yielded the required information in the context

of this study, and closed questions would not have been suitable, for reasons detailed

above.

Despite the limitations noted above, the open question methodology employed here

proved extremely fruitful, and provided valuable and rare insights into judicial attitudes

and perceptions toward sentencing, together with a greater understanding of judicial

methodology.

3.2.2 Interview process

In the letter requesting an interview for the purposes of the study, judges were given an

information package, including assurances of anonymity and confidentiality of the data

collected. The letter also included a copy of the questions to be asked in the interview.

The decision to provide a copy of the questions in advance was made so that the judges

would be fully informed in making the decision to participate, and in order to allay any

fears as to the subject matter of the study and the interviews. This decision was made

after consultation with two judges who were involved on a preliminary basis in assisting

with the assessment and development of the questions. Although providing the

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questions in advance is unusual for interview-based qualitative research, it was decided

by all, including the reference group of judges, that the likely benefits in participation

rates would outweigh any potential disadvantage. Comments made by some judges

during the interviews tended to support the earlier view that participation rates would

have been significantly reduced, and the interviews more difficult to conduct, had the

questions not been supplied in advance.

Because of the unusual form of the interviews (where the judges had been given copies

of the questions in advance), a small number of interviews proceeded in a rather

structured manner, with the judge virtually dictating answers to the questions and

almost taking charge of the interviews. In most instances however, the interview

proceeded by asking the first question, and then allowing the answers and the discussion

to flow from there. Follow up questions from the list were then asked where necessary,

however in many cases they had already been answered. Again, because of the nature

of the interview topics and the people being interviewed, in some instances there was

little opportunity to ask many, if any, follow up questions as the judge was determined

to speak for the entire interview. This however yielded valuable insights into the

process and had the desired effect of not suggesting answers or outcomes to the

questions and issues posed for discussion.

In all cases, the interview was conducted in an informal manner, with the judges feeling

at ease to answer the questions as they saw fit. Interview times ranged from 20 minutes

(only one interview was this short) to two and a half hours; with the timing and pace

dictated by the circumstances of each interview. The average interview took between

one and one and a half hours. Interview times were somewhat dictated by the court list

and its dynamic changes; however, as stated above, the judges were generous with their

time, and in several instances the interviews went considerably longer than the allotted

time.

Again because of the fact that judicial officers were being interviewed, a decision was

taken not to record the interviews by taping. After discussions with the reference group

of judges, it was concluded that taping interviews would have the potential for some

judges to decline participation, and may have had a dampening effect on interview

discussions. A decision was made therefore to use handwritten notes which would

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become the basis for an interview transcript, which could then be corrected with the

assistance of the interview subject, should they so desire.

Vindication of the decision not to tape also came during many of the interviews when

judges frequently mentioned cases before them, or personal or other matters which

would have served to identify them in the final transcript. Taking notes of the interview

meant that these matters were not recorded (and did not have to be excised from the

transcripts), and confidentiality of the subjects could be maintained at all times.

Audibility would also have been a problem with the tapes, as many of the judges spoke

so quietly or so fast, that transcribing from the tape would have been difficult.

The interview procedure therefore consisted of handwritten notes made by the

researcher at each interview, which were dictated immediately afterwards to form a

transcript. Each transcript was then sent to the applicable judge for checking and

verification, on the prior agreed basis that if there were no response there would be an

assumption that they did not have any comment to make. Of the 31 interviews which

took place, 13 judges responded with minor corrections or additions to the transcript,

and these corrections were incorporated into a final record. In addition to this, in two

instances the judges returned a corrected version that they had dictated based on the

original transcript.

In interviews with judicial officers, gaining their trust and cooperation is critical.61 The

fact that the researcher was known to many of the judges as a legal practitioner or

academic was probably also a critical factor in making them comfortable with

participation in the project. In addition, many of the judges interviewed expressed

considerable interest in the research topic and appeared to be gladly involved.

3.2.3 Questions

The questions to be asked were developed after conducting a review of the relevant

literature, and identification of the issues which were to be explored in the research.

They were also decided after looking at other similar exercises, however this was very

61 See also comments in Henham, above n 16, 50-51.

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limited because of the few such studies that had taken place. The Crown Court study

was the only other judicial study thought to be directly comparable, and the approach

taken by those researchers was examined in detail. However the research methodology

of that study could not be duplicated owing to the fact that a team of researchers and

greater resources were involved. Nonetheless, as can be seen from the discussion in

ensuing chapters, the conclusions from both studies are very similar.

The questions were intended to be broad and unstructured in nature so that the judges

would be given an opportunity to speak freely on the issues which were of concern to

them, without the researcher suggesting answers. The decision was also made to ask

one general question at the beginning, which would put the judges at ease and allow

them to speak generally about the topic. Because the interviews were designed to be

unstructured, it was not intended that all of the available questions would necessarily be

asked in every interview (in the sense of follow-up questions which may already have

been answered). This was explicitly stated both in the covering letter and at the start of

the interviews themselves.

It was made clear to the judges interviewed that the questions were being asked in the

context of the project, which was an analysis of the sentencing process under the

Penalties and Sentences Act 1992 (Qld). After conducting the interviews, it became

obvious that the judicial answers revealed a wider range of issues, allowing a detailed

examination of how judges see the process, judicial discretion, aims and purposes and

public opinion.

The questions asked were as follows:

1. From your perspective as a judge, how do you see the sentencing process?

2. How do you approach the task of sentencing?

3. How do you see your role in the process?

4. What role do you think the purposes of sentencing as set out in s 9(1) of the

Penalties and Sentences Act 1992 (Qld) play in the process?

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5. How do you make a decision concerning which of these to apply in a particular

case?

6. What (apart from the specific circumstances of the offender and the offence)

influences you as a judge when applying the purposes under s 9(1) of the Act?

7. What part do you think public opinion plays in the process, and how do you

determine it?

8. What role do you think the media plays in sentencing?

9. What role do you think judicial discretion plays, and how important do you see this

as being?

Question 1 was designed to be general in nature, and to elicit general comments about

sentencing, from the judge’s point of view. It was also designed to put the judges at

ease, and to allow them to speak freely. The additional questions were available to be

used if necessary, and were not intended to be used in each interview if the previous

answers had already covered these issues. Questions 2, 3, 5 and 6 were therefore rarely

used, and if so, the judge generally said that they had already answered them. Because

the questions had to be pre-approved by two university ethics committees, it was not

possible to add further questions, or for the researcher to raise additional matters.

4 T h e m a t ic a n a ly s is

The judicial interviews for this study yielded a wealth of material on the sentencing

process, in particular the judge’s role in that process, the aims and purposes of

sentencing, judicial discretion (including a discussion on sentencing dispositions), and

the role of the media and public opinion in the process. The interview material was

extensively analysed and common themes in the area of judicial perceptions and

attitudes to sentences drawn from the material obtained.

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Although many of the interview responses are lengthy, the decision was made at the

time of analysis that quotations from the interviews would be used in the text of the

chapters, where appropriate. This decision was taken based on the rarity of the material,

and the need to maintain context in the usage of that material. In a couple of instances

only, for example where the difficulty of the sentencing process is being discussed in

chapter 4, the responses have been summarised and discussed in general.

The potential disadvantage with this approach is that some of the quotations are lengthy

and may be seen to detract from the overall analysis. Because of overlap, some

interview material has also been repeated in different chapters (or rarely in parts of

chapters), but this has been minimised whenever possible. Despite these potential

drawbacks to using the interview quotations in full, it was decided that they were

outweighed by the positive benefits.

4.1 Som e cautions

Because of the nature of the interviews, some cautions on the interpretation and use of

the material should be noted. Because the interviews were relatively unstructured,

many of the comments made were random and not in response to a particular question.

It should not be assumed therefore that because there were not many comments on a

particular issue that other judges might have held an opposite view, or even no view. A

quantitative analysis of the responses is therefore not generally possible in most

instances, and a comparative analysis is likewise not always possible.

What must also be remembered when reading the interview responses is that they are

spoken comments, not written, and therefore have an informality which is lacking in the

more formal written word, particularly legal writing. The comments can seem quite

informal and “chatty” at times. It must be borne in mind that these are not court

judgments tempered by the constraints of formal legal writing, but informal interviews

where the judges were free to speak their own opinions in an anonymous way, and did

so.

Although every attempt was made to correct errors in the interview transcripts at the

time of checking and verification, some errors became evident at the time of writing up

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and analysis of the interview material. As the transcripts had already been returned to

the judges for correction and therefore stood as agreed records of the interviews, only

obvious typographical errors were corrected at that later stage. Likewise, grammatical

errors that were discovered at the later stage were only corrected where necessary to

make sense of a phrase, or where another meaning was obviously intended. Other than

this, the transcripts have been left in their original state as agreed, and no attempt has

been made to improve the language or make other changes. In a couple of instances

only, [sic] has been used to indicate an error which has been left in. This was only done

where it became necessary in order to make sense of the text.

5 C o n c lu s io n s

The judicial study was successful in its objectives of obtaining the views of judges on

the sentencing process and related topics. The judges were cooperative, helpful, and

willing to participate in numbers that far exceeded expectations. Most of the interviews

took longer than anticipated (due largely to the enthusiasm of the judges being

interviewed), and revealed a wealth of information.

The methodology chosen for the study was likewise successful in drawing out the

judges’ opinions on sentencing by the employment of open questions. The use of a

general question at the beginning of the interview put the judges at ease, placing the

emphasis on their views, rather than answering a list of pre-set questions. Many of the

judges held strong opinions about sentencing, particularly law and order issues, and

were pleased at the opportunity to express them. It was obvious from the first interview

onwards that these were issues about which many of the judges felt strongly and they

welcomed the opportunity to speak freely to a researcher on an anonymous basis. Many

expressed the view that there were many matters upon which they were misunderstood,

and they felt that the public in general held many misconceptions about the sentencing

process.

The 31 judges who participated, nearly two thirds of the available pool of subjects,

provided a good cross-section of views. There is no gender balance in the Queensland

judiciary, and thus gender balance in the study was likewise not possible. The

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jurisdiction of Queensland provides a good base for a study of judicial perceptions of

sentencing, retaining as it does a wide judicial discretion. The history of sentencing in

Queensland, as revealed in chapter 2, demonstrates that the judges have in fact few

constraints on their sentencing.

A key issue which emerged was the importance of listening to the judges and what they

are saying about the sentencing process. The way in which the judges perceive that

process, and thus go about their role is critical to understanding the process itself, and

informing other processes such as law reform. The data from the judicial study are

discussed in each of the following four chapters, and conclusions drawn about the

nature of sentencing and its practical implementation by the judges.

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Chapter 4

Judges and the process of sentencing

1 In tro d u c t io n

The essence of sentencing is the balancing of interests within the framework of

law. The interests to be balanced are the community, the accused, the accused’s

family, the victim, and the victim’s family. The balance is easier said than done.

It is constrained by the framework of law - this is the public misconception of

the process; it is more difficult than the public thinks. It is the most difficult job

that a District Court judge does; it is the complexity of the balancing which is

emotionally draining.1

The analysis in this study of sentencing methodology through the eyes of the judges

themselves begins with this chapter on how the judges “see” the process. It broadly

encompasses their approaches to sentencing, their perceptions and attitudes toward the

sentencing process, and the role of the judge and other parties in carrying out the

sentencing function. The material in this chapter has obvious links and overlap with the

material on judicial discretion dealt with in the next chapter.

An overriding theme in this chapter is the difficulty of sentencing, both in terms of

applying ever-changing law to vastly different situations,2 and the inevitable conflicts

produced by the differing interests represented in the courtroom generated by the

adversarial system; never so starkly illustrated as in the criminal jurisdiction. Added to

this is the emotional and physical drain on the sentencers themselves.

Judge E.

Justice Michael Kirby, “Judicial Stress” (1995) 13 Australian Bar Review 101, 109.

See also discussion in Justice Michael Kirby, “Judging: Reflections on the Moment of Decision” (1999) 18 Australian Bar Review 4, 18; Kirby, “Judicial Stress”, above n 2.

128

A secondary issue which came through many of the interviews for this study was the

feeling that the sentencers themselves felt largely unappreciated for the role performed

by them with such difficulty, and that the weight of critical public opinion was

becoming very heavy indeed.4

A significant number of judges interviewed responded with a description of sentencing

procedure when asked how they saw the process. Perhaps these judges perceive the

process to be mainly procedural, and do not look for anything deeper. For many others,

there was a metaphorical explanation of how the system worked. In many instances, the

responses on this issue were negative in tone. Sentencing was thought by some to be

difficult, unpleasant and painful, and the community was seen as largely unappreciative

of the difficult task that sentencing constituted. Some judges perceived themselves as

working in an isolated and thankless environment, subjected to constant uninformed

criticism. These issues will be further explored in the next section.

2 B a la n c in g o n th e t ig h tr o p e

Sentencing is an attempt to juggle objects of various sizes while walking a

tightrope which is being shaken at both ends.5

How judges themselves see the process of sentencing, together with their beliefs and

attitudes, is an important key to understanding how the sentencing system works.6 As

the present study demonstrates, many judges have a picture of how the sentencing

system should operate, and the metaphor of balancing was the one most commonly

employed. The difficulty of the task was emphasised and the dilemmas it brings

frequently mentioned. Sentencing was seen as complex and troublesome. The judges

sometimes saw themselves as central players in the process, with some likening it to a

play or dramatic performance.

The effect of critical public opinion and media comment is discussed in detail in chapter 7.

Judge I.

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By far the most common view of the sentencing process by the judges in the study was

that sentencing is a balancing exercise. When offered an opportunity to describe how

they saw the process, over one third of the judges interviewed (12 out of 31 judges),

described it as some kind of balancing act. What was being balanced varied; from the

principles which favour a heavy penalty or a lighter one, to the interests of all parties in

the process. These were some of the comments:

Each sentence is a balancing exercise and different factors will predominate

from time to time.7

The sentencing process is like scales, it is very finely balanced. 8

Sentencing is a balancing act to reconcile those often difficult to reconcile

considerations.9

Sentencing is a balancing process; I ’ve got to come up with the most appropriate

sentence to fit all of the circumstances.10

The role of the judge is to strike a balance within the range that is the

circumstances of the offence and the offender.11

12Sentencing is a balancing exercise in a particular case, not a science or an art.

Every sentencing process involves a balancing of the principles of those which

tend to favour a heavier penalty and a lighter one.13

Andrew Ashworth et al, Sentencing in the Crown Court: Report o f an Exploratory Study, Occasional Paper no 10, Centre for Criminological Research, University o f Oxford, Oxford, 1984, 8.

Judge DD.

Judge E.

Judge Q.

Judge Y.

Judge D.

Judge BB.

Judge I.13

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Sentencing is not solely science, art or intuition. It is a balancing act, between the

interests of the community, the concerns of the victim, and the best interests of the

offender.14

The concept of “balancing” has been frequently used by the courts to explain the

conflict between competing interests faced in sentencing. The comments by judges in

the present study reflect a general trend in Australian jurisdictions to describe the task in

those terms.15 A frequently cited statement describing sentencing as a balancing

process was by Chief Justice Street in 1977 in the New South Wales Court of Criminal

Appeal case of Rushby, where he described the determination of a sentence as “an

adjudicative balancing of a number of differing and not entirely consistent elements.” 16

This description was cited with approval in 1999 by McHugh J in the High Court in B v

The Queen, where his Honour added:

The task of the sentencing judge or magistrate is not to add and subtract from an

objectively determined sentence but to balance the various factors and make a

value judgment as to what is the appropriate sentence in all the circumstances of

the case.18

In keeping with the balancing analogy, two judges in the present study described the

process of sentencing using similar metaphors:

Judge F.

See eg, Williams v Community Corrections Board (Queensland) (2000) 110 A Crim R 385, 389 (CA Qld); Henry (1999) 106 A Crim R 149, 153 (CCA NSW); Carmody (1998) 100 A Crim R 41, 46 (CA Vic); Thomas (1997) 96 A Crim R 32, 47 (CA Vic); Daniel (1997) 94 A Crim R 96, 129 (CA Qld); Police v Cadd (1997) 94 A Crim R 466, 490 (Sup Ct SA); Sheppard (1995) 77 A Crim R 139, 141 (CA Qld). See also the recent High Court decision o f Ryan v The Queen [2001] HCA 21 (3 May 2001) per Hayne J at para 133: “ [Sentencing] requires consideration and balancing of many different and often conflicting matters” , and also para 157.

Rushby [1977] 1 NSWLR 594, 597 per Street CJ, delivering the judgment o f the court.

B v The Queen [1999] HCA 46, para 18. See also the comments o f Callaway JA in the Victorian Court of Appeal in Carmody (1998) 100 A Crim R 41, 46, approving the statement in Rushby.

Ibid para 18.18

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Sentencing is like putting the pieces into a jig saw in each case. Some sentences

have recurring themes, but all are different.19

Basically I think that sentencing is a game, but it’ s not necessarily a fun game.20

Despite the balancing metaphor gaining obvious approval by the judges in this study, it

has not met with favour by all commentators. The concept of balancing is however an

important part of judicial discretion, and appears to be a critical aspect of sentencing in

the eyes of the judges. Balancing different factors in order to come up with a

sentencing outcome appropriate in every case raises however the issue of inconsistency

in sentencing, which is explored in chapter 5.

3 A p p ro a c h e s to s e n te n c in g m e th o d o lo g y

3.1 Introduction

Within the metaphors of balancing, there is an underlying theme of sentencing as a

process whereby the judge exercises her or his discretion to make the factors in that

individual sentencing process fit in place, so that the appropriate sentence can be given.

Another way that this has been described in previous studies of judicial officers in

Canada and the United Kingdom is that sentencing is an “art” .22

The Crown Court Study noted that:

Only a minority of the judges interviewed regarded sentencing as a matter of

principles and reasoned conclusions. Most judges described it as an intuitive

process, using such terms as “instinct” , “experience” , “hunch” and “feeling” ., 23

Judge V.

Judge B.

See eg, Andrew Ashworth, Sentencing and Criminal Justice, 2nd ed, Butterworths, London, 1995,61.

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987, 281; Crown Court Study, above n 6, 55.

Crown Court Study, above n 6, 50. See further discussion on this study in chapter 1.23

132

Commentators in both Australia and the United Kingdom have observed that sentencers

commonly refer to the sentencing task as an “art” ; not something that can be taught, but

which can be acquired by experience.24 Sometimes, sentencing has been referred to as

an “art” in order to justify the lack of reasons behind sentencing, or to deny the need for

further research.25

The relationship between the “art” of sentencing, and the lack of an expressed rationale

or detailed reasons for sentence was noted by Nigel Walker and Nicola Padfield, who

stated that:

...sentencers do not usually reflect or argue about their aims or the situations in

which those aims are relevant. That the offender deserves punishment, or should

be “treated” , or incapacitated from doing further harm, or used as an example to

deter others, is usually taken for granted, or agreed in a silent consensus.26

Although this statement was made in relation to the English criminal justice system, it

could be argued that it applies equally to Australian jurisdictions, including Queensland.

The “art” of sentencing is also necessarily and inextricably linked with the exercise of

judicial discretion: “The application of general principle to the concrete case is a matter

for the art of judgment involving the exercise of discretion.” One of the judges in the

present study also identified the balancing of factors in the sentencing process as

judicial discretion:

The balancing exercise that we talk about is sentencing discretion and it is

fettered by long-standing legal principles, and by the statement of principles in

the Penalties and Sentences Act and really only becomes relevant in a lot of the28borderline cases.

Nigel Walker and Nicola Padfield, Sentencing Theory, Law and Practice, 2nd ed, Butterworths, London, 1996, 109; see also Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed, Oxford University Press, Melbourne, 1999, 195.

This was cited as one o f the reasons why permission to proceed further with the Crown Court Study was refused: see Crown Court Study, above n 6, 64.

Walker and Padfield, above n 24, 109.

Hogon (1987) 30 A Crim R 399, 402.

Judge DD.28

133

Judicial discretion and its role in the sentencing process are explored in detail in chapter

5.

3.2 The art o f sentencing

In addition to findings from previous judicial studies (discussed above), there is strong

support in the caselaw for the view that judges consider what they are doing as an “art” .

A notable example of this was from two judges in the important guidelines decision by

the New South Wales Court of Criminal Appeal in R v Ju ris ic .29 In Jurisic , two judges

referred to sentencing as an art: “the inexact art of sentencing” (Spigelman CJ);30 “the

art of sentencing” ,31 and “sentencing is an art and not a science; and it is neither

practical nor desirable to impose procedural straitjackets upon primary sentencing

judges” (Sully J).32 In the earlier case of A st ill (No 2);33 Sully J elaborated on the

phrase:

“ ...sentencing is an art and not a science, and it is not either possible, or

desirable, for a sentencing judge to approach that task as though it were little

more than an arid mathematical exercise.”34

1CSimilarly, in R v Howland, ‘ Sully J contrasted sentencing as an art with the notion of a

science:

If it be true to say that sentencing is an art and not a science, - and there is clear

authority in this Court for that proposition, - then it is equally the case that

sentencing is not an exercise in either creative forensic mathematics or creative

forensic semantics.

29

30

31

32

33

34

(1998) 45 NSWLR 209. Jurisic and the use o f guideline judgments are discussed in detail in chapter 5.

Ibid 215.

Ibid 250.

Ibid 249.

(1992) 64 A Crim R 289.

Ibid 301.

Unreported, NSW CCA, 18 December 1997.35

134

In an earlier New South Wales Court of Criminal Appeal decision of Hayes,36 the then

President, Kirby P, also referred to sentencing as an art:

Courts of Criminal Appeal, both in this country and overseas, have endeavoured

to establish norms which can be applied by the sentencing judge. But they have

done so with constant reference to the inadequacy of the statistics and other data

usually provided, the dangers of drawing inferences from short statements of

fact in allegedly analogous cases, the misleading quality of skewed samples of

the cases presented to them and the perils inherent in attempts to reduce the

sentencing art to a simple mechanical function.

Sentencing has been referred to as an “art” in jurisdictions other than New South Wales.

See for example Brinsden J in the Western Australian Court of Criminal Appeal in

Gooch: “Sentencing may be likened to an art governed by a number of principles, some

of which may conflict when applied in a particular exercise of sentencing” : Veen (No 2)

at 476; 236.” 38

Likewise, the remarks of Crisp J in the Tasmanian Court of Criminal Appeal case of R v

Wise39 are frequently quoted:

Sentencing is an art and not a science. By that I mean that if in any gi ven case it

were possible to arrive at the exact measure of the punishment to be awarded by

the application of logical rules which proceeded with mathematical inevitability

to a determinate conclusion, then indeed the judge’ s responsibility would be a

different one from that which we know. Notwithstanding this fundamental fact,

this court is constantly faced with attempts, based on some system of analysis, to

expound principles of precision in relation to punishments awarded from time to

time by different judges in respect of crimes of the same generic character no

(1987) 29 A CrimR 452.

Ibid 468.

(1989) 43 A CrimR 382.

[1965] Tas SR 196.

135

doubt, but which differ individually and infinitely both in degree and

circumstance.40

Based on the above, it was anticipated that many of the judges in the present study

would describe sentencing as an art. However when given the opportunity to describe

the sentencing process, only two judges referred to the methodology employed as an

“art” . In addition, three of the judges refer to it only as “the art of sentencing” without

any further elaboration. The relevant comments were as follows:

I ’m a quick sentencer and I don’t reserve judgment as I regard sentencing as an

art not a science. I don’t tick off all of the criteria, I don’t think it is possible.

... If you set out to make sentencing a science it wouldn’t work. If there are too

many rules to apply, then it’s trying to make a science out of something which is

not a science. It’ s like keying information into a computer and having the

computer spit out the answer. This is not appropriate.41

The art of sentencing is trying to exercise judicial discretion to come to the

“right” outcome (if you can say that) 42

Neither of these comments refer to the concept in any detail, and both reflect different

notions, the first in contrast to a science, and the second in relation to judicial discretion.

This relative lack of adoption of the “art” comparison is mirrored by the lack of the use

of the term in appellate cases in Queensland 43

Ibid 200-201 (Crisp J). See also adoptions o f this judgment in McCormack (1980) 2 A Crim R 405, 412 (CCA Vic); Lyons (1993) 69 A Crim R 307, 311 (CCA Tas). See also very similar remarks by Everett J in Johnson (1983) 9 A Crim R 371, 375 (CCA Tas); and commentary in Kate Warner, Sentencing in Tasmania, The Federation Press, Leichhardt, NSW, 1991, 7; and Fox and Freiberg, above n 24, 195.

Judge C. Contrast this relatively unstructured approach to sentencing with the complex and detailed procedure mandated by the US Sentencing Commission Guidelines: see discussion in Anthony Doob, “The United States Sentencing Commission Guidelines: If you don’t know where you are going, you might not get there” in Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995.

Judge V.

No uses of the term in the Queensland Court o f Appeal could be located in a search of recent cases (up to early 2001) on relevant electronic databases.

136

In the Canadian study which was conducted as part of the Canadian Sentencing

Commission’s investigations,44 responses to a questionnaire sent to judges indicated that

many saw sentencing as an art, in the sense of an art rather than a science; and as a

process which could not be reduced to a mechanical application of formulae 45 The

Commission’s report pointed out that the analogy of sentencing as “art” can bring

misunderstanding:

A work of art requires time and assiduousness. It would be a misunderstanding

to believe that every sentence is the outcome of a lengthy and painstaking

process of deliberation. Although this certainly may be true of epochal

sentencing decisions and may also be true of many others, it would be

misleading to assert that such weighty deliberations are more the rule than the46exception.

This observation by the Canadian Sentencing Commission takes the “art” description

quite literally, commenting on the potential falsity of the analogy if it means that

sentences are intricately constructed like works of art. Another perhaps more apt

interpretation is provided by Fox and Freiberg,47 who note that describing sentencing as

an art carries with it the implication that sentencing is an instinctive or intuitive skill,AQ

rather than a learned one. This raises also the issue of an intuitive approach to

sentencing, which is discussed below.

3.3 Sentencing as a science

Sentencing has less frequently been described in caselaw and in the literature as a

“science” ; and even so the usage is often qualified, as in the statement by McHugh J in

the High Court in Everett v The Queen49 where his Honour said “ ...sentencing is too

44

45

46

47

48

Canadian Sentencing Committee Report, above n 22.

Ibid 281.

Ibid.

Fox and Freiberg, above n 24.

Ibid 195. The concept o f “ instinctive synthesis” as discussed in R v Williscroft [1975] VR 292 and subsequent cases is dealt with later in this chapter.

(1994) 181 CLR 295, 307. Cited also in Phan (1994) 76 A Crim R 66 (CCA Vic -judgment of the court).

49

137

inexact a science to make mere disagreement the criterion for the grant of leave to

appeal against the inadequacy of a sentence.”50 Similarly, see this statement by

Wall work J in E v The Queen:51

Reflecting the fact that sentencing never approaches a science or procedure of

any exactitude it can be seen that the guiding principles are relative and flexible

and to be moulded to suit the particular circumstances of the individual case.52

Also worthy of note is the mention in the significant Victorian case of R v W illiscroft53

where there is reference to the “ science and philosophy of punishment and

sentencing” .54

In the interviews for this study, only one judge described the sentencing process as a

science. This judge however gave a careful justification of why the sentencing process

should be so depicted:

The sentencing system is largely a product of history. It was previously

idiosyncratic, with much less control. There was a wide range of sentences

between judges. The science of sentencing was not important then, from that

grew the view that sentencing would be a process whereby the prosecutor gave a

few basic facts, the defence counsel may make some submissions to the court,

and the judge would then give a brief sentence, which may or may not be

appealed.

Even now some sentencing remarks are still short, however a lot are now more

“ scientific” . Now there tend to be more sentencing remarks addressing relevant

See also R v Pearson (unreported, CA Vic 18 March 1998): “ Sentencing is not an exact science” .

Unreported, W A CCA, 23 January 1996.

Ibid, citing an earlier statement o f his Honour in Evangelista and Laporte v The Queen (Unreported, CCA W A, 30 January 1992).

[1975] VR 292. See later in this chapter for discussion o f “ instinctive synthesis” and its impact on sentencing methodology.

Per Adam and Crockett JJ, at 300. Note that these words were also quoted with approval by Sully Jin/? (1993) 71 A CrimR 95, at 112.

54

138

issues, there is more thought about sentencing, and sentences are given in a

systematic and consistent way.

I look upon sentencing as a science because I try to approach it in a systematic

way in relation to other decisions. I don’t just go on my own reactions. I look at

other cases particularly the Court of Appeal. It is scientific in that I identify

relevant facts and intertwining themes. It is more an attempt to be part of a

systematic approach of sentencing consistency, this is very important. The

Court of Appeal is enforcing this.55

Even though this judge appears, on the face of it, to be a somewhat lone voice among

those in both this study and appellate cases, what the opinion demonstrates is that in a

“scientific” approach to sentencing, there is awareness of the need for consistency.

What is also being described is a process whereby sentencing is approached in a

systematic and careful way, and possibly the antithesis of the art/instinctive synthesis

approach described below.

One of the judges in the study specifically disagreed with the concept of sentencing as a

science: “You can’t do sentencing scientifically” ;56 and another judge opposed both

concepts: “Sentencing is a balancing exercise in a particular case, not a science or an

What is of interest is that so many judges in this study described sentencing in terms of

balancing, yet very few were willing to describe the process as an “art” or “science” .

Those who did tended used the terms in passing. What this may indicate is that either

these terms were little used in sentencing terminology in Queensland or that their use is

declining; probably the former, as suggested by a lack of usage in the appellate cases.

What does however appear to be occurring is that sentencing is coming to be seen as an

instinctive or intuitive process, and that this is the approach preferred by the judges.

55

56

5n

Judge A.

Judge AA.

Judge BB.

139

3.4 Instinctive synthesis

In the State of Victoria at least, the art of sentencing has metamorphosed into an

instinctive synthesis which is undertaken by the sentencing court.58 The introduction of

this term into common usage can be traced to the Victorian Court of Criminal Appeal

judgment in the 1975 case of R v W illiscroft,59 with the statement by Adam and Crockett

JJ that, “ultimately every sentence imposed represents the sentencing judge’s instinctive

synthesis of all the various aspects involved in the punitive process.”60 Although the

process of “ instinctive synthesis” was referred to in a 1984 Victorian Court of Criminal

Appeal case in the context of instructions to a jury,61 * it was not until the landmark 1990

Victorian case of R v Young that the term came into common usage in that State as a

description of the methodology employed by the sentencing court.63 The term has also

seen service in other Australian jurisdictions (even the High Court), as a description of

See also Arie Freiberg and Stuart Ross, Sentencing Reform and Penal Change: The Victorian Experience, The Federation Press, Sydney, 1999, 202.

[1975] VR 292.

Ibid 300. See also discussion of Williscroft and this approach in Fox and Freiberg, above n 24, 195-196.

Kehagias (1984) 13 A Crim R 82, 102.

[1990] VR 951, 955.

See the following Victorian Court of Criminal Appeal or Court of Appeal cases for usage of the term “instinctive synthesis”: Young [1990] VR 951; Scholes (1998) 102 A Crim R 510, 520; R v Kokkinos [1998] 4 VR 574, (1998) 101 A Crim R 227, 231; R v Carey [1998] 4 VR 13, (1997) 97 A Crim R 552, 555; R v Downie [1998] 2 VR 517, (1997) 95 A Crim R 299, 305; R v Grmusa[1991] 2 VR 153, (1990) 50 A Crim R 358, 362; Tierney (1990) 51 A Crim R 446, 448; O ’Brien(1991) 55 A Crim R 410, 414; R v Nagy [1992] 1 VR 637, 638-639, 652; Hall (1994) 76 A Crim R 454, 469; Barci (1994) 76 A Crim R 103, 111; Mundy (1994) 76 A Crim R 92, 97; R v Connell [1996] 1 VR 436, (1995) 83 A Crim R 249, 256; R v Storey [1998] 1 VR 359, (1996) 89 A Crim R 519, 526, 535; Enver (Unreported, CA Vic, 12 December 1995); Shoukan (Unreported, CA Vic, 15 February 1996); James (Unreported, CA Vic, 26 June 1996); Palmer (Unreported, CA Vic 13 September 1996); De Maria (Unreported, CA Vic 28 October 1996); Callaghan (Unreported, CA Vic, 12 December 1996); Soo (Unreported, CA Vic, 30 October 1997); R v Palmieri [1998] 1 VR 486, (1997) 91 A Crim R 120, 137; L (1997) 91 A Crim R 270, 280; R v Miceli [1998] 4 VR 588, (1997) 94 A Crim R 327, 333; R v Lomax [1998] 1 VR 551, per Ormiston JA).

140

the sentencing process,64 but the term “instinctive synthesis” (or other similar

manifestations) is not commonly used in Queensland Court of Appeal decisions.65

The term “instinctive synthesis” referred initially in Victoria to the antithesis of the

“two step” sentencing approach, where the sentencing court first decided the sentence

proportional to the crime, and then took into account matters personal to the offender 66

The term has also come to represent the process itself:

By that phrase, [in R v W illiscroft] their Honours clearly did not mean that the

process of arriving at the proper sentence was one of guesswork. They were

referring to the complex process involved in the exercise of the discretion

entrusted to the sentencing judge, a process of which the difficulty cannot be

denied but which is ultimately only reliably informed, in my respectful opinion,

by the sentencing judge paying careful regard to all the relevant factual

circumstances, overlooking none which has a relevant aggravating or mitigating

effect in relation to the sentencing disposition ultimately chosen, and giving to

each relevant matter of fact such weight as it deserves in combination with all

the other relevant circumstances. To my mind, that is the only promise the law

may provide that the disposition of the case ultimately arrived at will be that

which is just and fair to all concerned and will meet the legitimate expectations

of the community.

See eg, Ryan v The Queen [2001] HCA 21 (3 May 2001), Hayne J at para 144; Thomson and Houlton (2000) 115 A Crim R 104, 116 (Spigelman CJ); R v Raggett (1990) 101 FLR 323, (1990) 50 A Crim R 41, 45, 46 (NT Sup Ct FC); Pavlic v The Queen [1995] 5 Tas R 186, (1995) 83 A Crim R 13, 26 (CCA Tas); Verschuren v The Queen (1996) 17 W AR 467, (1996) 91 A Crim R 1, 16 (CCA W A); R v Jabaltjari (1989) 64 NTR 1, (1989) 45 A Crim R 47, 72; Russon (unreported, CCA W A, 21 December 1995, per Murray J); Punch v The Queen (1993) 9 W AR 486, 67 A Crim R 46, 55 (W A CCA).

A search o f relevant computer databases returned no usages o f the terms “ intuitive synthesis” or “ instinctive synthesis” in Queensland.

See discussion on the two-stage approach to sentencing in Fox and Freiberg, above n 24, 196 - 199. The two-stage approach, where the court first determines the objectively proportionate sentence, and then secondly any mitigating factors would be considered, has been directly rejected in Victoria (R v Young [1990] VR 951). See analysis o f this decision in Christopher Corns, “Destructuring Sentencing Decision-Making in Victoria” (1990) 23 The Australian and New Zealand Journal o f Criminology 145. Although this approach has been used in other jurisdictions, it has never been part o f sentencing practice in Queensland (an exception is where the Court o f Appeal has followed the two-stage approach to sentencing offenders with mental disorders - see R v Dunn (unreported Qld CA 13 May 1994), and R v Elliott [2000] QCA 267, following Channon v The Queen (1978) 33 FLR 433.

Verschuren (1996) 91 A Crim R 1, 16 (CCA W A; Malcolm CJ, Pidgeon and Murray JJ).67

141

/TO

The following statement by the Victorian Court of Appeal in Storey also sheds light on

how the courts see their role in sentencing:

Sentencing is not a mechanical process. It requires the exercise of a discretion.

There is no single “right” answer which can be determined by the application of

principle. Different minds will attribute different weight to various facts in

arriving at the “instinctive synthesis” [Young [1990] VR 951; (1990) 45 A Grim

R 147] which takes account of the various purposes for which sentences are

imposed [Sentencing Act 1991 (Vic), s 5] — just punishment, deterrence,

rehabilitation, denunciation, protection of the community — and which pays due

regard to principles of totality, parity, parsimony and the like.69 [references

added]

The concept of “instinctive synthesis” has however been described by sentencing

scholar Andrew Ashworth as an “inscrutable idea” , and as coming close to the notion

that the aims of sentencing should be balanced in every case.70 Instinctive synthesis has

also been subjected to criticism based on lack of scientific investigation of what the

sentencer is trying to achieve:

The courts approach the problem of sentencing as if it were an art, highly

dependent on the “instinctive synthesis” of the judge rather than as a matter for

proper scientific investigation and evaluation. In keeping with this approach, the

courts are more likely to be guided by legal precedent rather than by evidence

regarding the effectiveness of various sentencing options. Whatever the reason

for the dire lack of psychological groundwork in sentencing practice, things

must change.71

(1996) 89 A Crim R 519.

Ibid 526 (Winneke P, Brooking JA, Hayne JA and Southwell AJA).

Ashworth, Sentencing and Criminal Justice, above n 21, 61.

David Indermaur, “Offender Psychology and Sentencing” (1996) 31 Australian Psychologist 15,15.

142

Michael Tonry notes that the concept of instinctive synthesis indicates a belief that

“judges are uniquely qualified to set sentences and, presumably, despite the different

experiences, values and personalities of individual judges, that the sentences imposed

are just ones” .72 This he links with a concept of judicial ownership of sentencing, such

ownership being linked with judicial discretion and potential disparity.73 Tonry notes

that to most observers this is a self-evident problem, but one which is not self-evident to

many judges.74 His observation as to lack of judicial awareness of this problem is borne

out by the findings of this study.

Further, according to Justice Vincent of the Supreme Court of Victoria, the use of terms

such as “intuitive synthesis” is “almost a boastful admission of the absence of any

conceptual framework” .75 His Honour points out that sentencing is carried out for the

most part by judges and magistrates with “ limited theoretical understanding and

absolutely no training...” and further that, “Offences and offenders are assessed, to a

large extent, according to what are effectively the personal value systems and scales of

seriousness of individual sentencers. It is understandable in that situation that disparity

in sentencing remains a serious problem.”76

What then of instinctive or intuitive synthesis in the present study? Six judges saw

aspects of sentencing as either an intuitive or instinctive process or used similar

descriptions, but none described the act of sentencing as “intuitive synthesis” .

In sentencing, there is room for an intuitive view. Sentencing is not solely

science, art or intuition.77

78I decide which of the purposes to apply fairly instinctively, but not arbitrarily.

Michael Tonry, Sentencing Matters, Oxford University Press, New York, 1996, 178.

Ibid 178-180.

Ibid 177.

Foreword by Justice Vincent to Andros Kapardis (ed), Sentencing: Some Key Issues, La Trobe University Press (special issue o f Law in Context vol 13(2) 1995), Melbourne, 1995, 1.

Ibid. See also discussion on judicial education and training later this chapter at 9.5.

Judge F.

Judge H.

143

I always listen to what is being submitted to me, and I work to some degree on a

feel for things. I like to think it is based on experience. I suspect I am not often

wrong in my perception of something in this area. Most experienced judges will

do that.79 *

Sentencing is an educated response to a set of facts. Sentencing is an intuitive80process.

Sentencing really becomes a gut reaction, dependent on the individual case.81 *

One of the six judges felt that although the process could be intuitive, and used to be

instinctive, things had changed since the Penalties and Sentences Act.

The sentencing process used to be instinctive, but now it is governed by the

Penalties and Sentences Act. ... There are intuitive things about the process, but

you must follow principles... The purposes of sentencing are something that you82always think about in the back of your mind; it is an intuitive exercise.

Despite “instinctive synthesis” not being a popularly used term by judges in this study

and Queensland judges generally; intuition, gut reaction and perception were cited as

useful approaches to sentencing by the judges in this study. This compares with the

views of at least some judges in relation to judicial decision-making generally. See, for

example, the written views of Justice Kirby of the High Court, who states:

Impression, you see, is not enough. Instinct, hunch and “feelings” must be kept

in tight rein.83

In contrast, his Honour has recently stated in relation to the sentencing process:

Judge J.

Judge T.

Judge AA.

Judge O.

Kirby, “Judging: Reflections on the Moment of Decision” , above n 3, 15. Note however the caveat that Justice Kirby was discussing judging generally, not specifically discussing the sentencing function.

144

This court has said many times that sentencing is not a mechanical function but

one that involves intuition and judgment.84

The use of the term “intuition” leads to questions about the process of coming to a

decision. If a judge is using “ intuition” , “experience” or “gut reaction” to make a

decision in sentencing, what assumptions and attitudes are being used, and how can

there be a guarantee of objectivity and fairness and a lack of disparity between this

offender and others in a similar position? Justice Kirby alludes to this problem:

We should not be too surprised that this [intuition] plays a part for it is simply

the application to a particular case of the accumulated experience of professional

life. Yet intuition may itself be the product of unrecognised psychological

forces, cultural assumptions and social attitudes. Working under the pressure of

constant decision-making, the average judge does not have a great deal of time

to pause and clarify, in his or her mind, the myriad of influences which are at

work.85

The present system of determining sentence in all Australian jurisdictions, (with the

exception of where particular sentences are prescribed, such the Northern Territory’s

mandatory minimum sentencing scheme), is that the sentencer is guided by either

common law or legislative factors which must be applied in accordance with sentencing

principles, including legislatively mandated maximum penalties and rules as to the

availability or otherwise of particular sentencing options. This contrasts strongly with

the position in many United States jurisdictions where the sentencing outcome is

prescribed by sentencing guidelines or even grids.86

Ryan v The Queen [2001] HCA 21, (3 May 2001), Kirby J at para 89; citing Lowe v The Queen (1984) 154 CLR 606, 610; and Pearce v The Queen 1998) 194 CLR 610, 624.

Kirby, “Judging: Reflections on the Moment o f Decision” , above n 3, 19.

For a description o f the US system, see Tonry, Sentencing Matters, above n 72. The US sentencing guidelines are discussed in detail in chapter 5.

145

4 H o w d if f ic u lt is th e ta s k ?

The difficulty of the sentencing task was one of the most consistent themes running

through the interviews for this study. This reflected, in very similar terms, the views of

the judges as found by the researchers in the Crown Court Study:

... we were told, time and time again, that sentencing is the most difficult and

lonely task which a judge has to perform. Part of the difficulty seemed to stem

from the view that sentencing is an art and not a science: all the general

guidance received from sentencing conferences and appellate decisions was

thought to afford little assistance in specific cases, no two of which are regarded

as alike. ... It was difficulties of these kinds which led some judges into a sense

of insecurity and consequently a defensiveness about this most public aspect of

the judicial role.87

In the present study, it was obvious that the judges took the sentencing part of their

judicial role very seriously. Over one third, thirteen judges of the interview sample of

31, specifically discussed the process as being “difficult” , “very hard” , not something

“any sentencing judge takes lightly” , “difficult and thankless” , “trying” , “hard” and

something that “doesn’t get any easier” .

Sentencing someone to jail was also seen as difficult: “The other really difficulto o

sentence is where you are forced to impose a jail sentence.”

Some judges pointed out problems with the sentencing system and how it is perceived,

one judge calling it “troubled” , another referring to the problems coming from the

system itself:

The sentencing system is wrong, and we will never get a change until the people

decide the politicians can’t do anything about it and the people have to be the

Crown Court Study, above n 6, 55.

Judge DD.

146

one to make the decisions. ... We are never going to get anywhere until we

start punishing people instead of breaches of the law.89

Not all of the judges said that the process of sentencing was difficult. Two judges made

the point that it was not always so:

In a lot of cases I find the sentence easy, particularly if the ranges that the

prosecutor and defence give coincide.90

It’s not a process with which I feel uncomfortable, no doubt because of my

considerable experience in the criminal jurisdiction, both before and since my

appointment as a judge.91

As personal details could not be taken because of the protocols for this study, it was

not possible to correlate length of experience on the bench with the degree of difficulty

stated to be experienced by that particular judge. However several judges identified

themselves in the interviews as being either experienced or inexperienced. The judge

(immediately above) who identified as being experienced, said that he or she did not

encounter difficulties in the process. Generally speaking, this appeared to the case,

however it was also the case that very experienced judges who had been on the bench a

long time tended to speak of the anguish caused by sentencing and the fact that it never

got any easier. However one judge who identified himself or herself as experienced

made the following observation:

One thing you should not do as a judge is to take home your worries about

whether a sentence you have imposed was correct. No good crying over spilt

milk. As long as you sentence conscientiously to the best of your ability in

accordance with your oath, the facts of the case and the law you are properly

89

90

91

92

Judge S.

Judge B.

Judge F.

See details on ethical approvals and research protocols in chapter 3. The main reason for not taking personal details such as gender or length o f service on the bench was the (very real) potential for identification o f the subjects, who agreed to participate on the basis that the study was conducted on an anonymous basis.

147

performing your duties. You often have to make decisions on the run. At the

end of the day if you’re going to agonise after you’ve made a judgment you’d

become a candidate for a mental institution.93

Finally, one judge identified procedural difficulties in the case of delay:

If the sentence takes place two years after the offence, the immediacy is lost,

particularly if it is a custodial sentence. The big change I would like to see is

that the trial should take place as soon as possible after the offence, or at least as

soon as things such as scientific tests have taken place. This would also assist

witnesses or people who are pleading guilty. ... Delay is one of the big issues

in the court. If the court is dealing with an offence that occurred ten to twenty

years ago, as is the case in some of the sexual offences cases that are now

coming before the court, it is very difficult.94

These findings on the difficulty of sentencing accord also with the conclusions of the

Canadian study of judges by McCormick and Greene, where the judges used terms like

“excruciating” and something that “you just sweat blood over”.95 Some judges in the

Canadian study however stated that they found sentencing easy,96 and this also accorded

with the findings of the present study.

Judge EE.Judge B. Note: It should also be stated that at the time these interviews took place there were a number of cases before the court concerning crimes committed 20-30 years ago. These were mainly cases involving sexual offences against children. Several of these cases came up for sentence during the interviews, and attracted considerable media interest. A number of judges referred to these cases in the interviews.Peter McCormick and Ian Greene, Judges and Judging, James Lorimer and Company, Toronto, 1990, 154-155.Ibid.96

148

5 S tr e s s

Judging can be a stressful business, yet stress is a subject which neither judge

nor advocate is supposed to admit, still less write about. ... The time has come97to break the silence.

As the judge sits in isolation on the Bench presiding over the courtroom, it is easy to

forget that as well as sentencing being difficult; it can also be a stressful and emotional

process for them. As Justice Kirby of the High Court states, judicial stress is not often

spoken about, but it is a very real phenomenon.98 References to judicial stress have

until recently been rare. The public statements by Justice Kirby99 have been met with

denials by some that stress is a problem for the judiciary, and a desire not to publicly

discuss the possibility.100

The reasons suggested by Justice Kirby for judicial stress are that judges make decisions

which cannot be delegated, must do so in public in often dramatic circumstances, are

subject to appellate criticism and review, and must discharge their functions with

“impeccable honesty, resolute even-handedness, conspicuous humanity and a high

degree of judicial wisdom” .101

Four of the judges in the study spoke specifically about stress and anxiety in sentencing,

in addition to the comments made about the difficulty of sentencing (discussed above).

This is not to say that it was not a matter of concern to the other judges who were

interviewed; but that they did not raise it as an issue which they wanted to discuss, and

Kirby, “Judicial Stress” , above n 2, 10i.

Ibid (generally). Note that Justice Kirby was not discussing the stress of sentencing directly, but the stress o f judging in general.

Kirby, “Judging: Reflections on the Moment o f Decision” , above n 3, Kirby, “Judicial Stress” , above n 2, Justice Michael Kirby, “Judicial Stress - A Reply” (1997) 71 Australian Law Journal 791.

Justice J B Thomas, “Get Up O ff the Ground (A Commentary on Hon Kirby J’s ‘Judicial Stress - An Update’ )” (1997) 71 Australian Law Journal 785. At the time o f writing this article, Justice Thomas was a senior member o f the Queensland Supreme Court bench. He was permanently appointed to the Queensland Court of Appeal in 1998.

Kirby, “Judging: Reflections on the Moment o f Decision” , above n 3, 18, citing A Watson, “Some Psychological Aspects o f the Trial Judge’s Decision-Making” (1988) 39 Mercer Law Review 937, 938.

149

were not specifically asked questions about this aspect of their role. This is a subject

which warrants further research in a study specifically designed to look at the sources of

judicial stress and how the judicial decision-making process is affected. What the

present research establishes at least is that a number of judges do feel that the

sentencing role is stressful. The comments made were as follows.

I find sentencing very traumatic and stressful, particularly if I sit in the criminal

jurisdiction for a long time. It is sad and distressing to see the waste that takes

place. Sentencing alternatives that are available are somewhat rigid and

hidebound. There is a futility in putting someone in prison, as I know it isn’t

necessarily going to stop or rehabilitate them. Often there is really not an

alternative.102

Sentencing is very painful; it is the worst part of our job. One has to steel1 m

oneself to do it; you do what you have to do without liking it.

It becomes more than just an intellectual task but quite an emotional task in

determining what the proper punishment is.104

The amount of anxiety it [sentencing] gives an individual judge is substantial.105

In addition to these judges who spoke “on the record” about the stress and anxiety

caused by sentencing, a number of other judges in the study spoke about the stressful

nature of the process and the many sad cases that came before them which affected

them deeply on a personal and emotional basis. Cases concerning crimes against

children were typically mentioned. These anecdotes were not recorded either because

the judge asked that this not occur, or that to recount them may have led to

identification of the case, thereby breaching the anonymity demanded of this study.106

In many of the interviews, the stress and emotion engendered in sentencing was

102103

104

105

Judge J.

Judge X.

Judge L.

Judge CC

150

obvious. At the end of quite a few, the judges mentioned “getting it off their chest” ,

“exposing their soul” , or similar concepts. In some instances, the interviews themselves

appeared to have been cathartic.

These difficulties and the stress indicated by some judges, coupled with the lack of

opportunity to frankly discuss cases before them as a form of “debriefing” , has the

potential to be a serious problem for the administration of justice, and supports Justice

Kirby’s calls for something to be done about the issue. This can be contrasted with

other professional disciplines that have such a debriefing process, such as social

workers, emergency workers, psychologists, psychiatrists and the like.

6 T h e hu m an fa c e o f ju d g in g

What the public and even legal practitioners can easily forget is that “Judges are only

human.” 107

Judges also feel sympathy for people before the courts: “It is hard not to feel some

sympathy for people before the court. People can get caught up in criminal

behaviour.” 108 They can have an emotional reaction too: “On an emotional level if I

am angry it would be easy to simply lock them up. At those times the best thing is to

adjourn the court for a period.” 109

Sentencing also involves a lot of responsibility which can be difficult at times:

Going to jail can take a lot of time out of someone’s life; it is a big responsibility

sentencing somebody to prison.110

Sometimes a judge can identify with the person they see before them:

106

107

108

109

110

Due to the terms of the ethical clearances obtained to undertake this research, no data that identified the subjects could be collected or used in the study. (See further chapter 3.)

Judge T.

Judge D.

Judge J.

Judge D.

151

I often think there but for the grace of God go I .111

Finally, one judge reminds us that judges really are human:

Judges do on occasions make mistakes; they are honest hardworking

people who try not to err.112

What can also make the job of being a judge difficult and lonely is the lack of peer

support and friendship which can sometimes occur. For various reasons including

judicial independence, lack of time and new circumstances, judges are not always able

to keep up the previous professional and personal friendships they may have had, and

may not necessarily be able to form close friendships with other judges.113

Consulting with others was seen by one judge as something more for the inexperienced:

A judge, particularly one more newly appointed, might be inclined to rely on the

experience and advice of fellow judges in sentencing.114

A comment from one of the judges in the present study explains one of the reasons for

the lack of consultation with other judges:

You can’t consult with other judges, at least in the Supreme Court; and when I

was first appointed, I was advised that you couldn’t do this in case those other

judges might end up sitting in an appeal against your decision.115

This point of view accords also with statements made by Justice Kirby, a very

experienced judge, and now a member of the High Court of Australia. In an article

in112113

114

Judge CC.

Judge EE.

Kirby, “Judging: Reflections on the Moment o f Decision” , above n 3, 17, citing Patricia Wald, “Some Real-Life Observations about Judging” (1992) 26 Indiana Law Review 173, 179.

Judge K.

Judge EE.115

152

about judicial stress, he referred to the transition from the practising lawyer to sitting on

the bench as a “journey to loneliness” .116 He also makes the point that many newly

appointed judicial officers complain that there are few people whom they can ask about

the rudimentary problems of the job.117 This, as he points out, is a cause of

“uncertainty, self-doubt and stress” .118 This isolation, coupled with the lack of judicial

education and training for the job,119 means that the task of judging can indeed be

difficult and stressful at times, particularly when the Bench is subjected to constant

comment in the media.120

7 S e n te n c in g w o rk lo a d

There is little doubt that judges generally perceive that their sentencing workload is

increasing. According to Justice Kirby:

Judges faced by ever increasing case loads and, generally, no way to deflect

them, are placed under enormous physiological pressures to get decisions

completed as quickly as possible so that more and new decisions can be tackled.

The most common complaint of the legal profession about judges in the United

States is of delay in handing down opinions. It may be the same in Australia.

Yet, most judges, out of necessity, learn quickly that pain is diminished by121tackling decisions as soon as possible. It is only increased by delay.

In the Queensland District and Supreme Courts, sentencing is done fairly quickly, and

there is a lot of pressure on the courts to get through a lot of sentences on the one day.

Many judges interviewed stated that they were under significant strain because of the

workload placed upon them on sentencing days. Many, particularly District Court

judges, spoke of commonly having eight sentences listed on the one day and the

Kirby, “Judicial Stress” , above n 2, 104.

Ibid 105.

Ibid.

Ibid. The lack of such a training system in Australian contrasts with other jurisdictions where this occurs, eg Germany. See later discussion on judicial education and training at 9.5.

This criticism is further explored in chapter 7.

Kirby, “Judging: Reflections on the Moment of Decision” , above n 3, 18.

116

117

118

119

120 121

153

difficulties that this caused. This they contrasted with the position in other Australian

States where it was perceived that there was a significantly lower caseload and

consequently more time to consider the sentence in each matter. A number of judges

spoke of the difficulty that this put upon them.

One of the only constraints on the process is a lack of time, as sometimes I have

to impose eight sentences in a day. The other constraint on my time is that I

have to check the sentencing transcripts and this also takes a lot of time.

Because I am an experienced judge, I won’t waste time listening to waffle from

counsel.122

In Queensland the sentencing process is much quicker than some other

jurisdictions, and there is a lot of pressure to get through as many as eight

sentences a day. Three quarters of an hour is a typical sentence, and this gives

little time to absorb the facts, and is barely sufficient to come to a balanced view

about it.123

As a sentencing judge in Queensland in the District Court we would do six to

eight sentences a day, which most other States would regard as horrific.124

In the Supreme Court we would ordinarily do five to six sentences a day on1 ' J C

sentencing days.

If you look at the situation in other jurisdictions, you would have to question

why judges in Queensland have approximately eight sentences set down before

them on a sentencing day. The judges have no option but to accept the facts1 9A

before them, and they have to sentence on that basis.

Judge I.

Judge M.

Judge R.

Judge V.

Judge G. This generalised comment should be read in the context that judges would question the facts when, for example, they do not support a plea o f guilty entered by the accused person.

122123

124

125

126

154

The pressure to get through a large number of sentences was not confined to judges

sitting on sentencing hearings at first instance, but extended also to those who sat on the

Court of Appeal.127 *

Applications for leave to appeal against sentence and actual sentencing can be

distressing. The Court of Appeal is under a lot of pressure to get work done

sometimes hearing 5-6 sentencing appeals a day. Some of these appeals are198

disposed of by ex tempore judgments - others are reserved.

This suggests that a lack of resources is putting pressure on judges, both at first instance

and appellate level, to get through matters more quickly than should be the case. This

may be having a detrimental effect on the quality of outcomes, although there is no

evidence put forward to prove that this is the case. What is evident is that there is some

judicial frustration about this issue, which is adding to the pressure and stress that the

judges are already working under.

The time constraints and difficulties faced by the Court of Appeal mentioned by the

judge above were also found in the Crown Court Study,129 suggesting that these are

fairly universal problems, and that workload pressures are not restricted to any one level

of courts. The comments made by the judges in this study suggest however that

pressure of workload and other constraints are possibly producing a less than optimum130outcome m some cases.

In contrast with the practice in some other Australian jurisdictions, it is not the usual

practice in Queensland for either party to call witnesses to give evidence; for example,

for the defence to call medical evidence or character witnesses. If such evidence is

As pointed out in chapter 3, in addition to the those Supreme Court judges permanently appointed to the Court of Appeal, all other Supreme Court judges appointed to the Trial Division sit on the Court of Appeal on a rotational basis.

Judge EE.

Crown Court Study, above n 6, 48.

See discussion on the difficulty o f the sentencing task above at part 4.

155

required, it is usually provided by way of hand up reports or letters, and tendered ini o |

evidence.

The process of sentencing is pragmatic at the starting point. Procedures in

Queensland are a little different in that we rely on what counsel put up, whether

agreed or disputed, as well as the advocacy skills of the relevant parties.132

It is not uncommon for the entire hearing to be very brief. This description by one of

the judges in the study gives an accurate description of a normal hearing:

In a simple case, the prosecutor starts with the age of the person, a fairly set

piece, then gives the history followed by the facts. Sometimes this is helpful,

sometimes too brief. The judge then has to extract what the prosecutor is

actually saying the accused did. Sometimes they give a victim impact statement,

sometimes not and sometimes they talk about co-offenders. There is a

submission from the Crown on what is the appropriate range and then

submissions from the accused.133

The implications of an excessive sentencing workload are open to conjecture (if the

assertions by judges in this study are correct), but must include the possibility that

judges are being given insufficient time to properly consider cases before them, and

therefore that some sentences may not have received proper consideration. Whether or

not this is actually the case, the number of complaints about lack of time for sentencing,

and pressure to get through a certain number of cases in a day raises significant

concerns about workload which should be further investigated.

Under s 15 Penalties and Sentences Act 1992 (Qld), the court can receive “ such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed or order to be made.” The practice o f not calling witnesses is not invariably the rule, but is a convention which would occur in all but the most exceptional cases.

Judge BB.

Ju d ge A .133

156

7.1 Adjournments

Related to the above discussion on workload is the practice in Queensland of rarely

adjourning a sentencing hearing and reserving the decision to hand down the sentence at

a later time. Unless there has been a report ordered or some other reason, a sentence

hearing in Queensland is rarely adjourned, and it is normal practice for the judge to give

the sentence immediately after hearing submissions:

It is rare that I would leave the bench and adjourn in a sentencing hearing, most

of my sentences would be done on an ex tempore basis.134

I usually sentence on the spot giving ex tempore judgments and don’t reserve

my sentencing decisions.135

Two judges acknowledged that there were sometimes circumstances when an

adjournment was advisable:

The main thing to do if you have any concerns about what you are going to do in

a particular case is to adjourn the matter and think about it before sentencing the

person.136

On an emotional level if I am angry it would be easy to simply lock them up. At

those times the best thing is to adjourn the court for a period.137

Although the practice of not adjourning sentencing matters is largely one of convention

in Queensland, it could also at times reflect time pressures on judges to get through

matters quickly, and thus be related to workload and stress issues.

Judge K.

Judge EE.

Judge V.

Judge J.

157

8 S e n te n c in g p ro c e d u re

8.1 Practicalities

A number of judges, when asked how they saw the process of sentencing, gave a

description of the procedure they followed in court. This also indicates that they see

sentencing in fairly practical terms, and yields some insights into how they approach the

task. Significantly, there appears to be a belief by some that if the appropriate method is

pursued the appropriate result will follow.

I look at the circumstances of the offender, the circumstances of the offence and

other matters to which we are required to have regard. I approach it from an

open mind. I usually try to read about the case in advance, particularly where it

is a more serious type of case; particularly where it is for example a rape, where

there would almost invariably be a custodial sentence. I make sure that I am

familiar with the material, but a judge can only sentence on the material before

them in court and I always do this. I always listen to the circumstances of the

offender and the offence then apply the sentencing principles according to their _i oo

appropriateness to the crime.

When sentencing I listen to the offence or offences and try to gauge how serious

it is, then I listen to the personal circumstances of the accused and try to balance

it up. When looking at the offence I take into account prevalence and the impact

on the victims.

I give a very brief outline of the offence and then the remarks that follow.

I look at the offender and the circumstances of the case, and the criminal history

which is particularly important if there have been no previous convictions for

offences of the same type. I would tend to disregard the criminal history if there

have been no similar previous offences. Of course on the other hand, the

138

139

Judge N.

Judge Y.

158

previous criminal history is particularly important if it is a case involving

violence and there is a history of violence in the criminal history.140

8.2 Sentencing as a rational process

It has been said that Victorian judges view sentencing as an essentially pragmatic

exercise.141 Fox and Freiberg note that,

... no factor is less predictive of the ultimate sentencing order than the court’s

general theoretical rationale.142

Such a pragmatic approach involves, more or less, the judge’ s response to a particular

set of facts. The present study tended to reflect that approach to sentencing.

The judge’s role is to come up with the sentence.143

Sentencing is pragmatic, and as a judge, I respond to a set of facts.144

I sentence on the facts of the individual case. Sometimes you can lose sight of

the wood for the trees. What is relevant is very much the facts of a particular

case. Because the Supreme Court has a very limited jurisdiction in crime, it is

without the variety of situations. It has more sameness in the sentencing

process.145

Sentencing is the culmination of the criminal investigation. Police do the

investigating and the offender then comes before the court. The courts have a

responsibility of determining an appropriate sentence. I don’t look for any1 Aft

deeper meaning in the process.

140

141

142

143

144

145

Judge D.

Fox and Freiberg, above n 24, 202.

Ibid 202-203.

Judge CC

Judge T.

Judge G.

Judge N.146

159

Others saw the sentencing process in a related way as imposing justice according to law:

I believe that the sentencing judge should be imposing justice according to

law.147

The sentencing process is designed to fix the penalty according to the law

and reflect the criminality of the offender’ s conduct.148

The process was also seen as having little to do with the judge’s own personal or

idiosyncratic views:

I see the process as designed to achieve a result consistent with basic principles

of sentencing as set down in the Act, and which properly takes into account the

individual circumstances of the offender and individual circumstances of the

offence. I see it as having very little subjective features in the sense of what I

personally think is important.149

You are not free to apply any idiosyncratic notions to the sentencing task. There

are no preconceived views apart from submissions put, and reading authorities,

as to the massive components going into the mix. We all have a framework

which we apply, and you know you have to take into account. Within these

constraints, I have no preconceived notions.150

The judge is there as the representative of the community. I have to keep that in

mind. I cannot apply idiosyncratic views. I try to have my view correspond

with what I feel would correspond with what most right thinking decent people,

not stupid people who are upset by hysterical media rubbish or political

opportunism, of careful intelligent people who have some knowledge and

understanding of the situation, but not necessarily thinking as I do. And so I

Judge Q.

Judge EE.

Judge H.

Judge W.

160

deliberately modify my views if I think they would not correspond with a

reasonably broad approach. I don’t think I am endowed with unique

enlightenment. It doesn’t mean I run with the crowd. Sometimes I impose

sentences I know will be met with criticism by people who want to abuse public

comment. You steel yourself to do what you have to do, not bending one way or

the other, to forces you think are not proper forces.151 *

The notion of procedural justice came in for some criticism, with one judge questioning

the notion of justice as being a subjective one:

Judges aren’t here to make people feel better. The role of the judge is to preside

over the trial and this is their main function. ... Justice is procedural; all you

can do is provide procedures that are fair. Sometimes I question what is justice.152It is a very subjective notion.

This last statement reflects also the recurring assertions in the literature that a sentence

is merely part of the criminal justice system, and cannot be a primary method of crime

control.153 These views were also expressed by Lord Taylor, former Lord Chief Justice

of England, in a speech in 1993:

But it must be remembered that the courts alone cannot make people good or

more responsible to one another. The courts are only one of a number of social

influences.

Finally, as one of the judges in the present study said:

The courts can’t fix society’ s problems.154

151

152

153

154

Judge X.

Judge T.

See discussion in chapter 1 at 1.1.

Judge EE.

161

8.3 Ritual and solemnity

Judicial officers are expected, as Sir Robert Megarry once put it, to be as wise as

they are paid to look.155

For some judges in the study, the ritual and solemnity of the courtroom were integral

parts of the process. There was an underlying theme through many of the interviews

that unless the courtroom drama is effectively played out; the entire system would

descend into anarchy. The court and the judge were seen as having important roles in

carrying out the rituals of the sentencing process.

A judge in court is like being on stage and they have to act a role. It is a public

occasion, and the judge has a certain status in the community. The judge plays a

role which might be outrage, mercy or compassion. The judge also visibly

displays that to the families in court.156

I am all in favour of sentencing becoming more formal.157

It is a bit of a ritual really?158

The ritual of the court is important. I hope that we keep our wigs and gowns

because they are part of the ritual. Most societies have some form of ritual.

This is in contrast with the Family Court in 1976, which began with no wigs and

gowns and encountered problems and brought them back in.159

There is no doubt that the judge plays a central role in the sentencing process, and that

respect for this role is crucial.160 Several judges likened it to a drama which is played

Kirby, “Judicial Stress” , above n 2, 105.

Judge M.

Judge G.

Judge D.

Judge CC.

See discussion of the relationship between the judicial role and public opinion and community expectations in chapter 7.

162

out in the courtroom. The adage of the “courtroom drama” is of course a common one.

Ritual and formality are mentioned in some of the above statements, and these aspects

have long played a part in the courtroom. Ritual can form a significant and meaningful

part of human life, and the ritual and formality of sentencing can be an important part of

that process.

Solemnity is equally important:

It is important in sentencing for such an offence to say the right things, to give

the sentence the solemnity it deserves but without descending into a tirade.161

To continue the analogy, it is for the judge to play this role, and lead the drama,

and this may sometimes carry with it a heavy burden.162

Justice Kirby has pointed out that role expectation and role-playing can be a source of

stress for many judicial officers.163

8.4 Pre-reading

A number of the judges discussed the advantages or otherwise of reading material in the

case before they went into court to hear a sentencing matter. Some only read reports or

similar material, and others read the depositions which are the transcripts and other

material from the committal hearing in the Magistrates Court. All spoke of the need to

have an open mind and the importance of listening to counsel in court and allowing the

submissions in court to drive the process.

I don’t read anything before I sentence, unless there is something like a pre­

sentence report or something that I ’ve been asked in advance to read. I allow it

to be a process driven by the parties.164

Judge V.

See discussion on judicial stress at part 5, above.

Kirby, “Judicial Stress” , above n 2, 105.

Judge H.

163

I approach it from an open mind. I usually try to read about the case in advance,

particularly where it is a more serious type of case; particularly where it is for

example a rape, where there would almost invariably be a custodial sentence. I

make sure that I am familiar with the material, but a judge can only sentence on

the material before them in court and I always do this.165

I have some ideas as to penalty before I go into court. If it is a plea of guilty, the

prosecution makes available beforehand the Crown case including statements in

the police brief. If there was a committal, I don’t look at the transcript. The

most important thing at that stage is the police brief with witness statements and

the record of interview (if there is one). I don’t however rely on this entirely,

because you have to listen to submissions and keep an open mind. After a trial

and a conviction the sentence reflects the jury’s verdict and I will have heard all

the evidence.166

Before I go into court I sometimes read the depositions, and the case seems

straight forward. But then I listen to the submissions made before me in court

and I change my mind about the sentence to be given.167

Another judge spoke of the dangers of the judge not keeping an open mind:

There are two schools of judges, one will read the depositions and other material

before going into court, and others will wait to hear what counsel have to say to

them in court. It is significant because I have seen sentences being imposed

which don’t reflect what was put up by counsel. It is for the parties to determine

the facts to go up before the judge. It is for the judge to ultimately exercise his

or her discretion on the sentence.168

Judge N. See entire comment in its context at 8.1, above.

Judge EE.

Judge E.

Judge BB.

1 6 4

Linked with the issue of pre-reading is whether or not the judge can take into account

matters other than those which are before them. One judge made it clear that it was

unacceptable for them to do this.

I always take into account what is put before me; I don’t take into account other

considerations.169

The comments made above about keeping an open mind and relying on the submissions

of counsel raise issues about procedural fairness, particularly where the offender is not

properly represented or unrepresented. Subsequent to the conduct of this study, a

number of cases have come before the Queensland Court of Appeal where the

applicants for leave to appeal against their sentence have alleged that their legal

representatives had not acted properly on their behalf.170 It should be noted however

that such allegations could be easily made if the accused person is unhappy with the

outcome of a case. With this reservation in mind however, it is nonetheless important in

a system where the sentencing judge is heavily reliant on submissions from counsel that

such submissions are carefully and properly made, and that counsel is properly

briefed.171

8.5 Doing deals

The interview responses discussed above on the procedure followed during a sentencing

hearing leads to issues concerning deals done between the parties behind the scenes.

Andrew Ashworth has pointed out that courts are usually constrained by the form in

which cases are brought before them.1'2 This may be in the form of decisions made by

Judge G.

See R v Mesken [2000] QCA 139; McKenzie (2000) 113 A Crim R 534; and R v Gadalojf [1999] QCA 286; all cases where the accused sought to withdraw a plea o f guilty. All applications for leave to appeal were dismissed.

It should also be pointed out that although Queensland maintains a divided profession between solicitors and barristers, solicitors also have a right o f appearance in the higher courts. Although in Queensland it is more usual for barristers to appear on a plea o f guilty, there are a number of experienced criminal law solicitors who appear in the District and Supreme Courts on pleas of guilty as a matter o f course.

Andrew Ashworth, “ Interpreting Criminal Statutes: A Crisis o f Legality?” (1991) 107 Law Quarterly Review 419, 422.

165

the police, the Crown Prosecution, and in the way that the defence puts the case before

the court.173

It should be said at the outset that in Queensland there is no formal system of plea

bargaining. This is not to say however that parties may not discuss the charges on the

indictment before it comes to Court, and for quite legitimate reasons. They may for

example agree that there is insufficient evidence to proceed on a certain charge, and

decide not to go ahead with that charge. The judge may not necessarily be formally told

about these discussions, depending on the nature of the discussions and the charges.

Three judges commented on obvious or apparent deals done between the parties which,

in their view, tended to subvert the process:

There is a real question as to whether the way our courts deal with sentences is

adequate to implement the purposes of the Act. Because there is a three-way

conspiracy between the courts, the prosecution, and the defence to deal with

matters quickly and expeditiously, there are too many cases listed. Lawyers

cooperate by admitting the facts, doing as little work as possible and not taking

up too much time. The judge is asked to sentence on assumed facts which is

ridiculous. This is brought about because neither party has time nor funding to

investigate the case properly. These assumed facts might not be entirely

correct.174

Sometimes there is a suspicion that the judge is not getting the full facts, that

there is a deal between the parties. You have to then decide whether you ask for

more details but I wouldn’t normally do that.175

Sometimes I have a suspicion when matters are put before me that there has

been a deal done between the Crown and the defence. Sometimes I feel that I

am sentencing on a false basis when the defence makes comments which aren’t176challenged by the Crown where I would expect them to be.

Judge G.

Judge A. See also comments on the passive role o f the judge at 9.2.

Judge D.

166

The first comment attributes the deals to pressure caused by the listing of too many

cases, and matters being dealt with too rapidly. In the last two examples given (and

possibly the first), the judges are citing their suspicions of what is occurring, without

being able to verify that it was indeed the case. What all three judges are referring to is

implicit plea bargaining going on behind the scenes.

Since the study was conducted, a case came before the Queensland Court of Appeal

where it was alleged by the accused person/applicant that there had been an agreement

made between the defence counsel and Crown Prosecutor that in return for his

cooperation, the prosecutor would not ask for a custodial sentence.177 * It was further

alleged that there was a breach of this agreement when the Attorney-General later

appealed the decision. The applicant also alleged that he was advised by his counsel

that he and the prosecutor (although the prosecutor denied this) had met with the judge

in chambers. The Court of Appeal counselled strongly against canvassing any so-called

“plea bargain” with the judge in advance of sentencing.179

8.6 Role o f counsel

As was the case with some topics already discussed in this chapter, questions were not

asked directly about the role of counsel in sentencing, but a number of judges

commented on it as an issue of importance and concern to them. Most comments

highlighted the importance of the role of counsel in putting information to the court.

The importance of defence counsel being well prepared and competent was particularly

highlighted, with concerns expressed by some that this wasn’t always the case. Crown

McQuire and Porter (No 2) (2000) 110 A Crim R 348, [20001 QCA 40.

The defendant was charged with the misappropriation (under s 408C(1) Criminal Code, now called fraud) of $685,000 which would normally attract a substantial jail term. The Attorney- General successfully appealed McQuire’ s original sentence which was a five year wholly suspended sentence. He was ultimately sentenced to seven years’ imprisonment, with a recommendation for parole after three years in recognition o f his plea o f guilty.

McQuire and Porter (No 2), above n 177, para 43 (de Jersey CJ), McMurdo P in agreement (at para 76).

179

167

submissions also came in for criticism with some judges expressing the view that the1

Crown was under-funded leading to resourcing and quality issues.

In the Crown Court Study, judges were asked about their expectations and opinions of

defence counsel. Discussions were also held with a small number of barristers. Most

of the judges interviewed stated that good submissions in mitigation were influential on

the result of the case, with the exception of very serious crimes where the outcome was

inevitable. A good mitigation submission was however generally defined as “articulate,

not repetitive, and well attuned to the judge’s own thoughts” .182 The last-mentioned

point is significant in that it indicates that the judges in that study tended to believe that

counsel were doing a good job if they told the judges what they wanted to hear. This

view was not so evident in the present study however. Comments on these topics were

as follows:

The judge relies on the Crown’s submission because of the adversarial nature of

the system.... If I thought the Crown prosecutor was really out of line I might

jack up and challenge that. I generally find submissions helpful; but at the

moment I rely heavily on submissions in establishing the tariff, but perhaps in

time I will know this. If there is a dispute on facts, with the defence submissions

I would be given an explanation.

I find submissions helpful if the defence counsel can quickly come to the point.

If the submissions they made were unrealistic I wouldn’t find them so helpful. I

find it particularly helpful if it is a difficult case and counsel can come up with

imaginative solutions. I find these very helpful and rely on these.

183I ’m very reliant as a sentencing judge on submissions made by counsel.

180

181182

Although the judges did not refer to this, there has also been constant criticism, particularly in recent years, relating to severe under-funding o f Legal Aid services for the defence.

See Crown Court Study, above n 6, 43-45.

Ibid 43.

Judge A.183

168

It is frustrating if the defence counsel is ill informed and will agree to a range

much higher than what is justified. The role of the defence counsel is crucial.

Before relying on them too heavily you need to make sure that they are

experienced, and quite often I am disappointed. Sometimes the defence counsel184won’t ask for more when they could. The judge needs to be careful of this.

The sentencing process is in a practical sense, governed by the material put

before the court from the prosecution and the defence. The process is1 RSnecessarily flawed if that job is not done properly.

The process is subject to a lot of variables, according to the individual

circumstances of each case and each accused person. The variables are apparent

in the ways in which cases are treated. In some cases there is no difference in

outcome no matter what counsel says in the case, in others it may make a

difference. It is important for counsel to be on top of their brief and be aware of

the circumstances that may be helpful in the outcome.

I like to see a good job done by counsel appearing in court, otherwise I amI Q*r

concerned that it might impact on the sentence.

A good defence counsel makes the judge understand the offender and the

reasons for his or her behaviour.187

188As a counsel you must be reasonably sure of what will happen to your client.

So many variables come into play in the process, in particular the extent of

moral culpability of the convicted person. Contrast a one off spur of the

moment offence and one in which there is a general pattern of offending

184

185

186

187

188

Judge B.

Judge K.

Judge V.

Judge P.

Judge Q.

169

behaviour; the difference between them can be very great. Those sorts of things

are what any competent counsel should be attuned to draw out.189

There were also concerns that counsel appearing before the courts were ill prepared:

This [the difficulty of the job] is not assisted by the poor quality of the

submissions of the lawyers who appear before the court. The prosecution is

often unsatisfactory, however there are some outstanding defence counsel. If I

feel that a counsel is particularly good, I will say that in my sentencing remarks;

that the person has had good representation. This good representation makes my

job as a judge easier. As a judge I give them lots of leeway, but I expect high

standards.190

I sometimes suspect that counsel are not properly prepared, and sometimes when

they appear in court it is obvious that it is the first time that they have read the

material that they are submitting to the court. They have neither time nor

opportunity to advise on evidence nor suggest whether further inquiries might be

made. I feel that the Crown is disastrously underfunded and doesn’t perform

well.

When counsel are making submissions before me, I make them tell me what the

range is. I find counsel are often ill prepared. It is a systemic problem.191

The sentencing process is haphazard. Often the Crown Prosecutor pays little

attention to what they are doing. Generally the Crown is under-resourced and

the Crown Prosecutor under-prepared. This is not necessarily the fault of the

individual prosecutors or the Office of the Director of Public Prosecutions, but

that the office is under-resourced and has to operate on a shoestring.192

In addition, concern was expressed at inappropriate submissions being made by counsel:

189

190

191

Judge W.

Judge E.

Judge G.

Judge M.192

170

I am shocked by the proactive role taken by prosecutors in an attempt to specify

the level of sentences. This is particularly disturbing if a judge didn’t have the

experience to know this for themselves.193

Generally speaking, the judges tended to rely on counsel’ s submissions to establish the

range,194 and saw counsel’ s submission as fairly crucial. Two judges spoke of keeping

within the bounds of the sentencing ranges submitted by counsel.

I try to sentence in a way that is within the perimeters and normally I wouldn’t

sentence over the prosecutor’ s submitted maximum penalty nor under the

defence counsel’ s submissions.195

In a lot of cases I find the sentence easy, particularly if the ranges that the

prosecutor and defence give coincide. Occasionally in sentencing I have gone

over the range submitted by the prosecutor, but nearly always where they

coincide I will give a sentence at the bottom of the range submitted by the196prosecutor.

This statement accords with the comments discussed above that indicated it was

common practice not to do any pre-reading before coming into court. Being rushed

and having too many cases listed, would also tend to make reliance on counsel a

necessity for much of the time. The comment about that proactive stance taken by

prosecutors again implies that the task of setting the sentence was largely taken out of

the judge’ s hands.

Crown prosecutors came in for criticism with a perception by some judges that the

problems, particularly under-preparedness, were due to under-funding. Although this

was not stated, there has been a widespread perception in Queensland, widely reported

193

194

195

196

Judge BB.

See further discussion on the significance o f the “range” in sentencing in chapter 5 at 5.2.

Judge A.

Judge B.

171

in the media, that under-funding has led to Crown Prosecutors being briefed at the last

moment and consequently being inadequately prepared for court.198

The role of defence counsel was seen as critical in order to put mitigating factors before

the court. The fact that some judges perceived that defence counsel were not proactive

enough and not well prepared is a matter for concern.

The results of this study do however raise a paradox with a system which is adversarial

and assumes well-prepared and researched submissions, when the reality may be

otherwise. At least part of the solution would appear to lie in enhancing resources for

both the prosecution and defence or by other procedural reforms. Continual reductions

in funding for legal aid and similar services make it difficult for accused persons to be

adequately represented, and as a result there may be greater delays or other adverse

consequences for the court system, as well as unfairness and potential injustice if this

means that an accused person is not legally represented (or not adequately represented)

in criminal matters.

8.7Giving reasons

Giving reasons for a decision is a general judicial duty which stems from the tradition of

the continuous oral trial.199 In the past it has not been mandatory for the judge to give

reasons for imposing a particular sentence,200 but there are a number of reasons why it is

extremely desirable to do so.201 Rationales given by Fox and Freiberg are that it enables

the parties to see the extent to which their arguments have been accepted; to further

judicial accountability; to enable interested parties to ascertain the basis upon which like

cases will be decided in the future; and to enable an appellate court to determine

See 8.4 above.

Whether this perception is in fact a reality is not the subject o f this study, and was unable to be verified.

Justice Michael Kirby, “Reasons for Judgment: ‘Always Permissible, Usually Desirable and Often Obligatory’” (1994) 12 Australian Bar Review 121, 123.

See however examples below in Queensland where giving reasons is now mandatory.

See generally Fox and Freiberg, above n 24, 175-176. See also Kirby, “Judging: Reflections on the Moment o f Decision” , above n 3, 34-35 for a discussion on reasons for decision contrasted with intuition or feelings.

172

whether the decision is erroneous.202 In addition to this, it is particularly important to

give reasons where the judge is imposing a particularly lenient or particularly harsh

sentence for a particular purpose, in which case it will be significant information to put

before an appeal court in the event of a challenge to the decision. The Queensland

Court of Appeal has indicated on numerous occasions that it will be less likely to

interfere with a sentence when reasons have been given by the sentencing court to

justify a sentence which is otherwise outside of the normal range.203

Despite this, it was the view of one judge interviewed for this study that when sitting on

sentencing appeals, they did not find the remarks of the sentencing court at first instance

helpful.

When I sit on sentencing appeals, I often don’t find the sentencing remarks of

the sentencing judge particularly helpful. What I am particularly looking at are

the circumstances of the offence and the offender, the outcome, and what affects

the person or prisoner personally.204 *

There are a number of examples in the Penalties and Sentences Act 1992 (Qld) where it

is specified that reasons must be given. These include where the court is imposing a

sentence of imprisonment; where a sentence imposed on an offender who pleaded

guilty is not reduced by virtue of that plea;206 * * and where the court is not ordering the

offender to serve the whole of a suspended sentence after a breach. In none of those

cases is the sentence invalidated by the failure to give reasons. A court is however

required to give “detailed reasons” when imposing an indefinite sentence under Part 10

of the Act,209 and this appears to be a mandatory requirement.210 Giving reasons for the

sentence is therefore desirable, but rarely mandatory in Queensland.

202203

204

205

206

207

208

209

Fox and Freiberg, above n 24, 176.

Geraldine Mackenzie, Summary Offences, Law and Practice Queensland, Looseleaf, LBC Information Services, Sydney, 1995, para 9.635.

Judge D.

Section 10(1).

Section 13(4).

Section 147(4).

Sections 10(2), 13(5), and 149. However in each instance the Act specifies that the failure maybe considered by an appeal court in the event o f an appeal against sentence.

Section 168.

173

The following comments were made on this issue by the judges in the study:

Sentencing remarks are crucial in the sentencing process. I find sentencing

remarks awkward, as you are addressing in theory the person standing in the

dock, who probably doesn’t really want to hear. Reasons have to be given for

guidance of other cases and the appeal court. When sentencing I don’t want to

sound pompous or pretentious, but I need to express to the person the

community’s view that their conduct is wrong. It is a bit of a ritual really.

When sentencing I indicate particular points in the case if there is something that

affects the penalty, and say how it affects it.211

It is vital that the judge says why they came to a certain decision because the

Court of Appeal can then reverse the decision if necessary. The appeal process212is very important.

Some judges spoke of using a standard sentencing rhetoric in all sentencing hearings, an

example of which was given as follows:

The sentence I impose is intended to deter you from the commission of this type

of offence again or from the commission of any other offences for that matter.

Part of the deterrent aspect of the sentencing process is the effect hopefully that

such punishment might have on like-minded individuals. They would realise

that the commission of offences of this nature by them would be followed

swiftly by detection, prosecution, conviction and appropriate punishment, and

they might desist from further prosecution of those offences. I have to take into

consideration community concern over the commission of offences of this

nature. Whilst I take into consideration what I perceive to be community

On the basis that there is no specific provision, as in the above examples, preserving the validity of the sentence if the court does not give reasons.

Judge D.

Judge C.212

174

concern, this does not dictate to me the type of punishment I impose upon213you.

Apart from judicial obligation, and sometimes provisions of the law, there is another

justification for giving reasons, which is discussed by the following judge:

It often sounds facile but a prisoner who might have an average education, let

alone an average intellect, must understand what is being said, and the second

person to whom you address the comments is the victim and their families. It is

often emotional, particularly where there has been a huge violation such as a

grievous bodily harm, rape or death case; and often their family who are there in

court and the family of the prisoner, whether they like it is another matter,

doesn’t concern me as much as that they understand why for example, a

custodial sentence is being imposed.214

What this judge is alluding to is the importance of giving reasons for the sentence, in

everyday language understood by both the offender and victims. With constant

criticism of the courts in the media, both in terms of public accountability and the

perceived lack of sensitivity of the court to victims, it is important that the courts do

whatever is possible to communicate the reasons for a particular decision.215 There is

however a possible conflict between the laudable aim of giving cogent reasons in

accessible language, and the time constraints and other pressures evident in the court

system (as detailed earlier).

Justice Kirby also puts the debate on judicial reasons in a wider context. It is this wider

context which is much more crucial than the strict legalism mentioned earlier, and is

worth quoting in full as this is a key issue:

• An appreciation of social and political developments which require greater

public accountability on the part of modem decision-makers;

213

214

215

Judge Q.

Judge Z.

This issue is further pursued in chapter 7.

175

• Technological developments that increase and expand the range of materials

available and the magnitude of information presented to decision-makers

generally in society;

• The institutional developments which have produced greater candour in

judicial decision-making; and

• Greater sensitivity to the rights of litigants and enlarged attention to

problems of communication, including in simpler English which readers of

judicial opinions may understand.216 *

To the last point on the rights of litigants can also be added the needs of litigants;

particularly in this context victims, who often have a need to understand what is? 17happening and why.

Finally, the policy considerations behind giving reasons have been set out by Justice

Kirby, who emphasises the importance of public accountability.

The scope of the duty to provide reasons is defined for me, at the margin, by

considerations which go far beyond the proper explanation to the parties, their

representatives, the legal profession, judicial peers and whole community, of the

decision in the particular case. For me, what is at stake is a basal notion of the

requirement imposed upon the donee of public power. Unaccountable power is

tyranny. If the exercise of power is accounted for, and is thought unlawful or

unjust, it may be remedied. If it is hidden in silence, the chances of a brooding

sense of injustice exists, which will contribute to undermining the integrity and

legitimacy of the polity that permits it.218

And in a recent article, Justice Kirby noted some qualifications, which should

nonetheless not prevent reasons being given:

216

217

218

Kirby, “Reasons for Judgment” , above n 199, 132.

See discussion on restorative justice in chapter 6 at part 9.

Kirby, “Reasons for Judgment” , above n 199, 133.

1 7 6

Inescapably, their written reasons can reveal only part of the journey to the

moment of decision. But should we dig deeper or will doing so merely cast

doubt on the certainty and objectivity of the law which Jerome Frank said is a

deeply felt, but child-like, human need? Such empirical studies as have been

attempted are said to produce “a sobering splash in the face with cold reality” .219

When the declaratory theory of the judicial function was overthrown, it left us,

the judges of the new age, with many uncertainties. Those uncertainties will not

disappear merely because we turn our backs on them.220

8.8 Communication with people before the courts

The issue of speaking to the parties before the court, beyond giving reasons for

sentence, was also raised by some of the judges. The reasons for this include:

It is important for people coming before the courts to have confidence that they

are being dealt with in a proper and just manner.221

One judge spoke at length of the desirability of talking to the person in court, and

making a point of addressing them as an individual, not as just another offender before

the court. What is also interesting is that this judge, in common with nearly all judges

who took part in the study, referred to the “person” in court, and not the “offender” ,

which stands in contrast to common terminology in the sentencing literature. There was

evident in all the interviews a careful respect and sensitivity for all parties in the

process, including the offender and the victim. The following judge in particular spoke

at length of trying to build the self-esteem of the person before the court, and in effect,

separating the behaviour from the person.

If I do in fact give them a lighter sentence, I will still give them a verbal

flogging, even exaggerating a bit, and then I will get into the self-esteem side

Citing Community Crime Prevention Attitudes, Australian Bureau o f Statistics, Queensland Office, 1987, 1498.

Kirby, “ Judging: Reflections on the Moment o f Decision” , above n 3, 21-22.

Judge W.

Although lengthy, the quote is set out in full to allow the proper context to be seen.222

177

and try to build that up. I also try to impose on them the enormity of what

they’ve done. I don’t go overboard on the self-esteem part. Sentencing is a

balancing act. I try to give them heaps about what it is they’ve done, especially

if I ’m going to give them something light like a bond. If that’s the case, I ’ ll give

them more of a verbal talking to.

When sentencing I try to build the person’s self esteem and say to them things

like “you don’t look as though you’re the sort of person to do this” . I try to look

at them as individual persons rather than as sausages lined up in a sausage

factory. Secondly, I try to build up a vestige of self-esteem to work on them

while they’re in jail, because a lot of crime is based on the loss of self-esteem.

Loss of self-esteem results from society thinking that they are rubbish and

eventually the person will think that they are rubbish, and they then develop a

totally different set of values. The loss of self-esteem builds a totally different

ethic. In those circumstances, society is not going to be saved by a law and

order campaign, only saved by a campaign to stop despoiling self-esteem. There

are a lot of reasons for a loss in self-esteem for example, unemployment and

lack of education.

When there is a loss of self-esteem, the person develops different values. This is

the reason why I try on one hand to impress upon the person the harm they have

done and then to give them a sense that they shouldn’t be there in court, that

they have features which are of value.

The goals that this judge was trying to achieve are best described as rehabilitatory as

this passage demonstrates: “The best sentences show humanity and give a sense of self-724esteem.

Another judge spoke of the importance of offering the offender a chance to speak:

223

224

Judge X.

Judge X.

178

I always talk to the person in court and ask them if they want to say anything. It

is important for the court to demonstrate that the court is considering the impact

of the sentence on the person. Often though they don’t say anything.225

And finally, for one judge, an important part of the sentencing function was as a means

of communication:

Sentencing is a moment of great communication between the judge and the

offender.226

The sentence as a communication tool is becoming a critical aspect of the process, at a

time when politicians and the media regularly focus on law and order, and calls for

harsher sentences are becoming louder. If the sentences which are being handed down

are not properly communicated to the parties and the public at large where necessary, a

lack of proper understanding of what is occurring in court will compound the

difficulties, and result in further criticism.227 To put this another way, proper and

effective communication in court is a necessary, but not sufficient, condition for wider

understanding by the media and the community.

8.9Information and support

A number of judges interviewed felt that there was a need for more information to be

made available to judges to assist in the sentencing task. There was a perception that

without sufficient resources being made available that the task would become more

difficult.

In Queensland, judicial assistance is unavailable; in contrast to New South

Wales with the Judicial Commission, which has translated to a terrific support

for judges. It provides them with sentencing guidelines, comparable sentences

and the like. Judges need more information and more money to be spent in the

courtroom so they can have better facts. The system tries pretty hard, and the

225

226

Judge B.

Judge P.

179

public might not realise but we are now a long way away from the old system

and are much more sophisticated.228

In recent years, a lot more information has become available on comparative

sentence via legal aid (electronically) and now the Crown, but there are

inaccuracies in the Crown’s records and possible faults. I would like to see

something like the sentencing information system in New South Wales, and it

should be the function of the Justice Department. Information should be

available to everyone electronically.229

I feel that the sentencer has a limited role, as they don’t know enough about the

person before them. The root cause of a lot of problems is lack of information,

for example if we were to impose a heavy fine we may not have enough

information on the person’s financial circumstances.230

This issue of lack of information and support is related to the workload issues discussed

above. If judges are expected to carry out the sentencing function in an efficient and

competent manner, it is essential that the necessary facilities and support required are

provided. If this is not occurring, it is almost inevitable that their capacity to do their

job will be compromised.231

8.10 Evaluation and feedback

Probably because of the nature of their role, it has been found in a previous study that

judges rarely receive feedback from their peers and the parties to the process concerning

227

228

229

230

231

See further discussion on this in chapter 7.

Judge M.

Judge Y.

Judge B.

It is relevant to note that the facilities at the Supreme and District Courts in Brisbane are long overdue for renovation or replacement, particularly in the case of the District Court which operates in cramped chambers dating from the 1960s and barely renovated since. The District Court judges are spread over several floors, thereby making contact and collegiality difficult between judges. The facilities for the Supreme Court judges are little better. The registry facilities for both courts are cramped and long overdue for updating. At the time of doing the study many judges (justifiably) complained about their chambers, lack o f sufficient funding for books and other facilities, and the lack o f proper computer facilities and training.

180

their performance in court.232 Legal practitioners are no doubt inhibited from making

constructive comments, and personal and court staff are likely to act with discretion

which suppresses criticism.234 If feedback comes, other research suggests it is likely to

come from other judges. The media however rarely have inhibitions about criticism

of a judge’ s performance: “Few judges will escape entirely the wrath or derision of the

media during their judicial career” .236

Two judges spoke of the need for independent evaluation of sentencing, and the way in

which it would enhance their ability to carry out the sentencing function.

It would be interesting as a judge to get some feedback on sentencing and how

counsel appearing before you view your sentencing decisions. Judges don’t

often get this form of feedback, and I feel that there would be a lot of benefit in• 237 It.

Another flaw in the system is that there is no evaluation of the sentence, except

by appeal. Appeals are not really an evaluation, except of the tariff. What is

really required to evaluate is sentencing effectiveness. ... It would be good if

feedback on the process of sentencing was available.238

The fact that two judges in this study called for feedback on their performances shows

that some judges at least are becoming more open and receptive to evaluation. This can

only be a good thing. There were no suggestions made by the judges as to how such

evaluation could take place. One suggestion by Justice Kirby is the possibility of

having fellow (more senior) judges as observers at the back of the court, or of having

other judges sitting on the bench. In practice however, there would be difficulties in

McCormick and Greene, above n 95, 100-102.

The research conducted by McCormick and Greene in Canada indicated that after becoming a judge, prior friendships with other lawyers tended to become strained: ibid 100.

Kirby, “Judicial Stress” , above n 2, 106.

McCormick and Greene, above n 95, 102.

Kirby, “Judicial Stress” , above n 2, 110.

Judge A.

Judge P.

Kirby, “Judicial Stress” , above n 2, 105-106.239

181

this occurring in a context where judges are already under significant time pressures to

carry out their normal duties.

Generally speaking, there are going to be limitations on the capacity of judges to obtain

feedback from their peers. Colleagues on the same bench do not observe each other’s

performance in court, and any comment is likely to be heard via indirect means. There

is some scope for informal discussion, and judicial officers using each other as sounding

boards, without compromising independence. The feedback on decisions is really

however restricted to appellate review. Even here there is no guarantee that this will

flow through to the sentencing judge.

In the Canadian judicial study by McCormick and Greene, only two judges (out of

approximately 90 interviewed) spoke of consultation on a regular basis with a chief

judge. If they did speak to their chief, it was normally either in relation to

administrative arrangements, or in relation to sentencing and in the form of mild

discipline.240 Of the trial judges interviewed in Alberta as part of that study, 24% were

identified as “ solo judges” who preferred not to consult with their peers; 66% identified

as “collegial judges” who saw consultation with their colleagues (albeit usually

informal), as an important aspect of their work; and 10% were classified as an

“organised bench judge” where they had regular formal sessions to discuss aspects of

their work.241

One of the other problems of the judicial role is the social isolation, both within the

court, and outside relationships.242 This is also a problem in obtaining feedback, and in

asking advice from other judges. One judge in the present study alluded to this:

You can’t consult with other judges, at least in the Supreme Court; and when I

was first appointed, I was advised that you couldn’t do this in case those other243judges might end up sitting in an appeal against your decision.

McCormick and Greene, above n 95, 141.

Ibid 141-146.

Kirby, “Judicial Stress” , above n 2, 107.

Judge EE.

182

As Justice Kirby points out, the isolation and lack of feedback which can be felt by a

judge can add to the stress they are experiencing, which has the potential to diminish

their capacity to properly fulfil their role.244

And finally, looking at the question of performance from another perspective is the

following judge who offered good advice about the need for judges to have confidence

in their own abilities to do the job, and not to agonise over decisions:

One thing you should not do as a judge is to take home your worries about

whether a sentence you have imposed was correct. No good crying over spilt

milk. As long as you sentence conscientiously to the best of your ability in

accordance with your oath, the facts of the case and the law you are properly

performing your duties. You often have to make decisions on the run. At the

end of the day if you’re going to agonise after you’ve made a judgment you’d

become a candidate for a mental institution.245

In conclusion on this question of evaluation and feedback, the tendency for constant

criticism of sentences in the media can easily lead to the conclusion by judges that such

criticism should be ignored, when in fact at times it may be warranted. Justice Kirby

points out that judges must remain alert in case such criticism is justified, lest they lose

touch with community values.246 This then highlights the importance of evaluation,

feedback and constructive criticism.247 If however criticism is constant and

unwarranted, it is likely to diminish the weight of feedback in general, which can only

be detrimental to the operation of the sentencing process as a whole.

Kirby, “Judicial Stress” , above n 2, 106-107.

Judge EE.

Kirby, “Judicial Stress” , above n 2, 110.

The prospect o f constructive criticism is, of course, related to the availability, to those making the comments, o f soundly based information.

183

9 R o l e o f t h e j u d g e

The role of the judge in the sentencing hearing, like any other hearing, is a difficult one

of taking into account all of the relevant factors and legal principles and coming to the

correct decision in all of the circumstances.248 The point was made in this study that the

court cannot perform other roles which sometimes seem to be expected of it:

It cannot, for example, call for and examine submissions from groups and

individuals who may be interested in the making of changes to the law in the

same way as government or a law reform agency can do. Moreover, a court

cannot lay down the law required to replace established principle in the detail

which may be required.249

Despite a long tradition which claimed that judges merely ascertain the law and do not

make it, it is now recognised that this position is somewhat artificial and illusory.

In a number of cases, for example where the Parliament has used vague terms in252statutes, there is a type of “power-sharing” between the legislature and the judiciary.

It is perhaps more accurate to speak of the legitimate limits of judicial creativity.

Some judges spoke in the interviews about their role in the process, which often took

the form of a regulatory role:

I see my role as listening to what the Crown and defence put up, and asking

questions about the facts or matters of which you can take judicial notice; in

other words, applying notoriously known facts. For example I know house-253breaking is rampant but I wouldn’t say I was broken into myself.

See earlier discussion on sentencing as a balancing process.

Sir Daryl Dawson, “Do Judges Make Law? Too Much?” (1996) 3 The Judicial Review 1, 6.

The declaratory theory o f justice has however been referred to as a “ fairy tale” : Dawson (ibid) 1, citing Lord Reid, “The Judge as Law Maker” (1972) 12 Journal of the Society of Public Teachers of Law (New Series) 22.

Dawson, above n 249.

Ashworth, “ Interpreting Criminal Statutes: A Crisis o f Legality” , above n 172, 422-423.

Judge C.253

184

The role of the judge is to preside over the trial and this is their main function.254

One judge also saw their role as a type of facilitator:

I try to stimulate what I regard as helpful submissions.255

The judge was also seen as a representative of the community:

I feel that a judge represents the community in what is going on, this contrasts

with vigilante groups. The judge is a replacement for the community; a state

approved system of punishment.256

The judge is there as the representative of the community. I have to keep that in

mind. I cannot apply idiosyncratic views.257

I see my role in the process as to bring my experience into the decision making

process, and my assessment of what is appropriate in the circumstances, based

primarily on experience.258

The importance of the role that the judge plays in the sentence is also related to ritual

and solemnity, discussed earlier. Particularly as a representative of the community, the

judge appears as the state-sanctioned officer who must decide, amongst other things, the

liberty or otherwise of the person before the court. This is a critical part of the

sentencing process, and it is important that it be done effectively in order to maintain

public confidence in the process.

254

255

256

257

258

Judge T.

Judge C.

Judge M.

Judge X.

Judge Y.

185

9.1 Maintaining objectivity

Being objective was seen by the judges in the study to be an important part of the role as

a judge:

Although the judge is a human being, and compassion and mercy are part of this,

they must be objective. On occasions I have imposed a sentence which is too

high, and the Court of Appeal has rightly overturned it.259

You have to be objective in sentencing. If you make a mistake in sentencing, the

Court of Appeal will correct it. Of course one tries not to err. Sentencing is also

becoming difficult because of analytical attitudes taken by the Court of Appeal

who appear readier to interfere with sentences than was formerly the case.

I listen to both sides and choose the most appropriate penalty. I don’t let my

own preconceptions go into the process.261

Two other judges stressed the importance of keeping an open mind:

The most important thing at that stage is the police brief with witness statements

and the record of interview (if there is one). I don’t however rely on this

entirely, because you have to listen to submissions and keep an open mind.

After a trial and a conviction the sentence reflects the jury’ s verdict and I will

have heard all the evidence.

Sentencing involves the risk that the person has to lose their liberty. It behoves

the judge to do as much research as he or she can. I ’ ve always done that. I

didn’t have a lot of criminal experience before being appointed. You can’t

consult with other judges, at least in the Supreme Court, and when I was first

259

260

261

Judge H.

Judge EE.

Judge I.

186

appointed, I was advised that you couldn’t do this in case those other judges

might end up sitting in an appeal against your decision.262

A judge tries consciously not to put biases into it, we try to overcome our bias.

It is fair to say that all judges have some circumstances that particularly stir them

up, for example unsolicited violence, or bad child molestation cases. By

violence I mean not just physical, but emotional as well. ... It is not the judge’s

place to make submissions on what the law ought to be, but we have our own

opinions. Judges have to be careful to overcome our biases and not allow anger

and excessive sympathy sway our decisions. This is where the training and

experience we have as judges and also as barristers comes into play.263

Fairness and the importance of being even-handed were also mentioned in the Canadian

study as an important characteristic of a good judge.264 In that study, judges were asked

specifically to nominate characteristics of a good judge, in order to determine their

subjective perceptions of this aspect of their role.265 Comparatively few (around 10%)

mentioned this quality, leading the researchers to express surprise, however they noted

that an explanation might be that a number of cases that they heard were “cut and

dried” . In the present study however where the sentencing function is not so cut and

dried, it is perhaps significant that more judges did not discuss this aspect; however it

should be noted that in the Canadian study (in contrast to the present study), the judges

were specifically asked to nominate desirable qualities.

9.2 Being proactive

A number of judges in the present study specifically discussed the nature and extent of

their role, and specifically, whether it was appropriate for them to be more proactive

than passive. There was a feeling by some that judges should not stand by and watch

while criticism of their decisions mounted in the general community. Two judges were

262

263

264

265

266

Judge EE.

Judge C.

McCormick and Greene, above n 95, 110.

Ibid 102.

Ibid 111.

187

of the view that they should be more proactive, particularly where the media was

concerned:

I have in the past invited people from the public to attend court and listen to the

whole of the sentencing process. This has changed their attitude.

If we just lie down as judges we will be kicked more. I intend to answer letters

to the editor in future. People are not going to write because they will be told

that they don’t know what is happening. Letters to the editor often show that

they clearly don’t understand the process. There should be a media liaison

committee and a media liaison officer for the courts. This would cost less than

an aborted trial. ...The electronic media is more of a problem; they are more

insidious.267

If I have a case that is high profile, I will ensure that the media have timely

access to the transcripts of the sentence or judgments. Often the cases can’t be

simplified, but we can as judges go to trouble to express concepts in ways that

can be understood and expressed in a newspaper article. It is also possible to

refer the media to parts of judgments which are useful and may give a summary

of the case. I don’t go out of my way to court the media, but there is no point in

making their job difficult. In keeping the media fully informed there are spin

offs in increased public awareness and understanding of the system, and thereby

assisting in making public opinion better informed.268

Two other judges saw the role as being more passive:

I am not upset by proposed legislation which limits discretion, but I might

disagree with it. This doesn’t prevent me from thinking that the limits are

wrong. The community can have the system they want; I don’t care and I will

perform my functions in the same way. The community gets the laws it

deserves.269

267

268

269

Judge I.

Judge V.

Judge Ci.

188

The role of the judge is a passive one. Sometimes I feel it is a function of my

lack of experience in the area and a suspicion that there has been an agreement

between the parties. I tend not to find out facts by asking questions even if I

thought it was fairly obvious. I don’t like to ask about x fact as maybe it

shouldn’t be talked about and I am not supposed to know. I don’t want to rock

the boat as a judge, I will listen to what is put forward.270

Because of the adversarial nature of the process, the judge can’t be271interventionist.

Although it was evident in at least one case that a more tentative approach to sentencing

was due to inexperience, there was also a view expressed that it was not the role of a

judge to actively intervene unless warranted. This would be the conventional approach.

The judges who spoke about being proactive were generally referring to dealing with

the media, (as distinct from actively intervening in the way a sentencing hearing was

presented), and indicated that they felt that it was time to defend themselves against

unfair comments that had been made. This is discussed further in chapter 7.

9.3 Other roles

Several judges saw their roles in sentencing as fulfilling a specific purpose, including272the protection of society, punishing offenders and trying to keep people out of prison.

The role of the judge is there to fundamentally protect society. There is an

element of deterrence in this as well. This is not a justification however to

depart from the rules.273

What I do in court is based on experience and trying to keep people out of274prison.

270

271

272

273

Judge A.

Judge K.

A number o f these concepts are further drawn out in chapter 6.

Judge O. See also discussion on protection as a sentencing purpose in chapter 6.

189

[My role in the process] is to properly punish the offender and recognise the

rights of the victim.275

Sentencing combines the positive and negative aspects of behaviour

management. ... It is part of the role of the judge to say that you, the person in

court, are not allowed to do this and I am giving you the opportunity to stop; and'JlfL

if you don’t you will be punished.

Reasonable people understand that the judge is a human being imposing serious

punishment on another human being for what the person has done [in the] past;

and as a judge you have to do something cold bloodedly that will operate for the

future, notwithstanding your realisation that the person brought it on

themselves.277

At the root of all judicial work is the judges’ oath and you act according to that

oath and your views. I try to be fair to the accused and fair to the Crown. The

guiding star is fairness to the accused, and fairness to the community. When

sentencing, you must arrive at a sentence which reflects the criminality of the

accused’s conduct.278

9.4 Perceptions o f seif as a judge

Allied to the question of how judges see their role in sentencing is the issue of how they

perceive themselves as a judge. Self perception is a significant point for discussion, as

it gives insights into the judges’ approach to sentencing.

Judge U.

Judge L.

Judge P.

Judge X.

Judge EE

190

In the Canadian judicial study, the judges were asked to state the qualities which cause a

judge to gain the respect of their fellow judges, the Bar, and the community at large.279

The ten most common responses (in order of popularity) were:

• Industry and diligence

• Courtesy

• Empathy

• Patience

• Knowledge of the law

• Intelligence

• Sense of fair play

• Makes difficult decisions

• Writes/expresses ideas clearly2R0• Common sense

The first attribute (industry and diligence) was overwhelmingly the most popular, and

relates to the notion of hard work and putting in the hours.281 Significantly, it ranked

well ahead of other personal attributes. In the Canadian study, as with the present, only

the perceptions of the judges were measured, not actual sentencing practices.

282In the Crown Court study however, despite the fact that it was only a “pilot study” ,

the researchers were able to match some of the judges’ perceptions with reality.

Although cut short in duration, the study was able to provide a “rich source of

information” by the use of judicial attachments and analysis of statistical material,

studied in conjunction with the interview material.283 Notably, the Crown Court study

found that judges were relatively unaware of their own sentencing patterns. In one

case, a judge believed that he had reduced his sentences for certain categories of crime

McCormick and Greene, above n 95, 102; significantly, the researchers noted that most o f the judges’ answers focussed on their fellow judges as their reference group.

Ibid 103.

Ibid 104.

Crown Court Study, above n 6, 5. As noted in chapter 1, permission to proceed any further was refused.

Crown Court Study, above n 6, 17.

Ib id 17, 5 0 -5 2 .

279

280

281

282

283

284

191

over a five-year period when this was not correct. In at least two other cases, where a

judge claimed to have passed a particularly lenient sentence in comparison with

previous sentences, this was not the case.285 The significance of this finding is that if

the judge decided that the sentence ought to be reduced owing to mitigating factors, the

reduction may not in fact occur if the judge’s perceptions of leniency were not matched

with reality.

In the present case, due to the breadth of the research, only perceptions were measured

(in common with the Canadian survey). Unlike the Canadian survey however, a

question about self-perception was not specifically asked. These responses (as is the

case with a number of other issues) should therefore be read with that qualification in

mind.286

A number of judges in the present study offered insights into themselves as sentencers,

ranging from perceptions as merciful, being a light sentencer to being consistent.

Perhaps not surprisingly, comments tended to indicate a favourable self-perception.

I consider myself a merciful judge. I have sympathy for people who are in

difficult situations and I like to keep them out of jail if I can. I believe that I am

humane.287

Mercy and compassion are part of [the sentencing role]. I also have concern for

what is going to happen to the person in jail.

I ’m a quick sentencer and I don’t reserve judgment as I regard sentencing as an289art not a science.

285

286

287

288

Ibid 50-51.

As noted in chapter 3 (Methodology), the questions were kept open for a number o f reasons, and the judges given the opportunity to discuss other matters which were o f interest or importance to them.

Judge Q.

Judge EE.

Judge C.289

192

Some judges had perceptions of themselves as either light or heavy sentencers and

identified themselves as such.

I am a light sentencer, and I hope to make an order that the Court of Appeal won’t

interfere with, or the Attorney General won’t appeal. I have had some appeals but

not many. ...Occasionally in sentencing I have gone over the range submitted by

the prosecutor, but nearly always where they coincide I will give a sentence at the

bottom of the range submitted by the prosecutor.290

Whilst I am a heavy sentencer, I think I act liberally with respect to rehabilitation

if it is a young person.

In yet another case, the judge saw himself or herself as a moderate sentencer:

Some judges may be harder than others; I try to strike a balance, to give

offenders a chance. Sometimes though you get to a point where enough is

enough.292

Another judge also had views on what attributes were required, but notably they did not

add that they themselves held those attributes:

Ideally, for the sentencing role one should have a prefect’ s mentality and be a

good impromptu speaker.293

One judge perceptively pointed out that no matter how they consider themselves, they

would still think of themselves as being right:

You have to try and maintain internal consistency in your own sentencing

processes. Some judges are noted for being too light, and some for being too

heavy. Each however thinks that they are right.294

290

291

292

293

Judge B.

Judge AA.

Judge J.

Judge D.

193

The last comment about each thinking that they are right is perhaps the most insightful

of them all. It is however significant that in common with the Canadian study, the

values mentioned were not primarily those of knowledge of the law and intelligence, but

mercy, sympathy, humanity and consistency. Although not discussed by enough judges

to necessarily make a valid sample; this may still indicate that Australian judges value

similar attributes to their Canadian colleagues, and that these qualities are the human

ones rather than the strictly analytical.

9.5 Specialisation and training

The issue of specialisation and training for the judiciary is raised from time to time in

sentencing reports and the like. In some jurisdictions, judges receive training before

appointment, and in other cases, training is received in the form of on-going judicial

education. The issue of initial and on-going judicial training has recently been raised in

a discussion paper prepared for the Australian Institute of Judicial Administration and

the Australian Judicial Conference. The paper discusses proposals and options for

the establishment of a judicial college which could provide such education, and points

out that there are compelling reasons why such a college should be established and why

there is a need for further judicial education.299

Judicial education was not specifically explored in this study, and only one judge

discussed this issue.

294

295

296

297

298

299

Judge AA.

McCormick and Greene, above n 95, 116-117.

See Australian Law Reform Commission, Sentencing: Report No 44, Australian Government Publishing Service (ALRC 44), Canberra, 1988, 152-154; Victorian Sentencing Committee, Sentencing: Report o f the Victorian Sentencing Committee, Attorney-General’s Department, Victoria, Melbourne, 1988, 223. See also discussion in Andrew Ashworth, “Sentencing Reform Structures” in Michael Tonry (ed), Crime and Justice: A Review o f Research, 16, University of Chicago Press, Chicago, 1992, 230-232.

See McCormick and Greene, above n 95, 54, discussing the French system where judges must graduate from special training programs before applying for a judgeship. Further promotion is by merit.

Christopher Roper, Proposed Australian Judicial College, Discussion paper prepared for the Australian Institute o f Judicial Administration and the Australian Judicial Conference, September 1999.

Ibid 3-8.

194

I think the judges are poorly trained in criminology and sentencing. There

should be specific judicial education in this area and there ought to be

compulsory training in criminology and sentencing for all judges.300

The ALRC in their 1988 report into sentencing gave compelling reasons why judicial

education in sentencing was necessary. These reasons included the complexity of the

sentencing task, the need for consistency and the fact that most judicial officers learn

about sentencing once on the bench, as many judges come from a civil law background

at the Bar. Little heed has been taken of these recommendations. Livingston

Armytage argues for the need for on-going judicial eduction, but notes the polarisation

of the judiciary on this issue. If, as is the case in most jurisdictions, must judicial

appointments come from the ranks of practising barristers with predominantly civil

practices, then the argument for specific education in sentencing becomes even more

compelling.

A related issue that is raised from time to time in general debate is whether judges

should be specialised. Many judges are appointed to the bench from a successful

commercial practice at the bar and would have had little criminal law experience. Two

judges in the study discussed specialisation, with opposite views.

I am a firm believer in specialist jurisdictions, so that judges who have

experience and expertise in crime for example can be appointed only to do that.

Some judges can be appointed to the court after having spent 20 years in

common law and have not much experience in crime at all.304

300

301

302

303

Judge E.

ALRC 44, above n 296, 152.

But note the investigations which are currently taking place into the establishment o f a judicial college, see n 298, above.

See Livingston Armytage, Educating Judges: Towards a New Model o f Continuing Judicial Learning, Kluwer Law International, The Hague, 1996, 29-40. See also Peter Sallman, “Judicial Education: Some Information and Observations” (1988) 62 Australian Law Journal 981 where the arguments in favour of a formal system of judicial education are laid out.

Judge BB.304

195

Many judges come from a background of civil law and know very little about

sentencing on their appointment. I don’t believe however in formal

specialisation of judges.305

The increasing complexity of the law, coupled with greater public and media scrutiny of

the practices of the court and more accountability requirements, may justify the re­

examination of the issue of specialisation of the judiciary. This is already occurring, at

least partially, in Queensland in areas such as planning and environment law. There are

valid arguments, as noted by the judge above, why criminal law in particular is a

specialist and difficult jurisdiction, and may merit a distinct specialisation in the courts.

This may also be reflecting what is occurring as a de facto practice, by self-selection

and other means.

1 0 C o n c l u s i o n

What the interview material analysed in this chapter has demonstrated is that many of

the judges interviewed for this study see the sentencing process as some kind of

balancing act, in which they are the central players. Some judges even expanded this

analogy with theatrical metaphors. They developed this notion with an insistence that

the process of sentencing is an instinctive one where gut feeling and other devices are

employed to come up with the sentence to be handed down. Only one judge spoke of

acting in a scientific way, weighing up the factors to achieve a measured outcome.

Many of the judges also saw sentencing as a difficult and stressful activity; one of the

hardest things they are called upon to do. According to some, not only is it stressful, but

also an emotional task. Of all of the tasks of judging, it was the one where they are the

most likely to show their human face, as sending a person to jail was seen as far more

difficult than adjudicating in a civil matter.

The process of sentencing itself was seen as formal and solemn. The judges tend to rely

on what is put before them by the parties, although this sometimes causes frustration

305 Judge E.

196

when they suspected that deals had been done behind the scenes, perhaps deals with

which they would not have approved. The role of counsel in the process is seen as a

vital one by the judges, with many critical of the performance of counsel at times. This

was sometimes put down to under-funding in the case of Crown counsel. Many of the

judges relied heavily on the matters put before them, as very few did any pre-reading

before coming into court, for reasons both of keeping an open mind, and also from

pressure of time.

The sentencing process itself in Queensland is quick and matters are rarely adjourned.

Many of the judges felt under pressure to get through a lot of cases rapidly, and some

felt that this affected the quality of their decision-making. Even though faced with the

burdens of expediting matters, some judges saw it as important to speak to the offender

and other parties before them when appropriate, as a part of carrying out the sentencing

function. Giving reasons was likewise seen as important, but not overwhelmingly so.

In discussing their role in sentencing, judges saw it as important that they be objective

and not introduce other considerations. The sentencing role was generally seen as a

passive one, but sometimes it was thought that they should be more proactive in

explaining generally what they do. In terms of the attributes required to be a good

judge, some saw themselves as merciful and compassionate or other similar terms.

These attributes appeared to be valued above knowledge of the law, but that may have

also been because they were not specifically asked a question in relation to attributes. It

is still significant that the judges themselves mentioned these characteristics when

discussing their role.

Perhaps surprisingly, only one judge discussed the need for further training in

criminology and like matters. Although the other judges did not discuss this, there was

overall a high level of confidence in their ability to carry out the sentencing role.

Specialisation, where for example, lawyers appointed to the bench with expertise in

criminal law would be confined to that area of the law, was similarly only discussed by

a few judges. Both of these matters however receive attention from time to time in the

academic literature and discussions by the profession, and are deserving of further

consideration.

197

Having confidence in their ability as judges to carry out the sentencing function seemed

to be an important factor in doing so effectively, although because this study was one of

perception only, the reality may have been different. The fact that judges rate

themselves as merciful or light sentencers does not necessarily mean that this is true.

Further research along the lines of the Crown Court study (which had to be aborted),

measuring perception against reality, would yield further interesting insights into the

sentencing process. The present study however gives significant insights into judicial

perceptions of the process, which add to the understanding of how it operates.

198

Chapter 5Judicial discretion in sentencing

1 I n t r o d u c t i o n

Sentencing is the exercise of discretion. Discretion is guided by the Act,

circumscribed by the appellate system and guided by what alternatives are

actually available ie, the effectiveness of community corrections.1

The previous chapter examined how judges perceive the process of sentencing, whether

it is as a balancing process, a juggling act or fitting the disparate pieces of a jigsaw

puzzle together to make a coherent whole. This chapter examines how and why judges

consider judicial discretion to be essential to sentencing.

If judges describe sentencing as an “art” or a process of “ instinctive synthesis” , it

indicates that what they are referring to is a process where judicial discretion is both

paramount and maximised.2 Although this connection is not often referred to outright,

it was discussed in the Tasmanian Court of Criminal Appeal case of Johnson:3

It is trite to observe that in many aspects of the exercise of judicial discretion the

essential approach must be one based on art and not on science. If this

distinction were not fully recognised in applying the developed practice in

respect of disparity in sentencing, its basis would change from being anomalous

to one of caprice. The former is tolerable, and, no doubt, wise and just; the latter

is not.4

Judge P.

See also Andrew Ashworth et al, Sentencing in the Crown Court: Report o f an Exploratory Study, Occasional Paper no 10, Centre for Criminological Research, University o f Oxford, Oxford, 1984, 60.

(1983)9 A CrimR 371.3

199

Unlike determinate sentencing systems,5 where discretion either remains with the/ n

legislature or is delegated to bodies such as sentencing commissions, under the

indeterminate sentencing model, discretion is in effect delegated to the judge, who then

assumes a central role in the process in assessing the appropriate penalty. If sentencing

is treated as an art, or as an intuitive or balancing process, the judge relies on experience

and intuition to apply the relevant sentencing principles and options to assess the

sentence, in contrast with a more “scientific” method.8 This is not to say however that

the exercise of discretion would not be according to law or without restraint, as will be

seen in the interview responses discussed in this and other chapters.9

As part of the exercise of discretion in sentencing, the judge must choose the

appropriate sanction and quantum. In both cases, he or she has a wide choice that is

governed by statutory sentencing principles (where applicable) and interpretation of

these in previous decisions, together with precedents on sentencing quantum taken from

previous decisions. The latter is usually referred to as sentencing within “the range” or

tariff-based sentencing.10

Sentencing legislation in most Australian jurisdictions involves, to varying degrees, lists

of sentencing purposes and factors and principles to be taken into account in

Ibid 374 per Everett J.

The Victorian Sentencing Committee defined determinate sentencing as referring to “any system of sentencing in which the sentence imposed on an offender is clearly ascertainable at the time it is imposed” : Victorian Sentencing Committee, Sentencing: Report o f the Victorian Sentencing Committee, Attorney-General’ s Department, Victoria, Melbourne, 1988, 162. “Determinate” and “ indeterminate” are terms frequently used in the US to refer to sentencing systems. Those terms are used here with the same meaning.

Such as is the case in mandatory sentencing systems, eg, that currently employed by the Northern Territory for sentencing property offenders, see s 78A Sentencing Act 1995 (NT). This scheme is discussed in more detail in this chapter at 4.3.

As is the case in a number of United States jurisdictions, including the Federal jurisdiction. This is discussed in detail in this chapter at 4.4, but see also Michael Tonry, Sentencing Matters, Oxford University Press, New York, 1996, chapter 1, for a summary o f the moves to sentencing commissions in the US.

See discussion on this in chapter 4 at part 3.

See also comments in Kate Warner, Sentencing in Tasmania, The Federation Press, Leichhardt, NSW, 1991, 7, as to these restraints.

See further discussion of this later in this chapter at 5.2.

200

sentencing.11 The judge must then apply them to an individual case as he or she sees fit,

and administer the appropriate sentence.

How restrictive are the legislative guidelines,12 and how much discretion is given to the

sentencer varies according to each jurisdiction; although in most Australian jurisdictions

there is little or no legislative prescription as to how the guidelines should be

interpreted. The ultimate discretion in the process lies in most instances with the judge

(subject of course to appellate review) ,13 and thus the issue of judicial discretion

assumes a critical importance in the process. The way in which this operates is aptly

described in the following statement by the New South Wales Court of Criminal Appeal

in the case of Rushby:

The judicial discretion underlying the formulation of a sentence must be

exercised with due regard to principles of law deducible from authoritative

decisions. The philosophy of the Common Law requires adherence to

established doctrines and principles that have over years, and in multiple

instances, been found to be best calculated to serve the ends of justice. The

adjudicative process, if it is to be consistent and ordered, must observe and apply

these doctrines and principles, and thus must necessarily be attended by a

requisite disengagement and detachment. It is cool reason, not passion or

generosity, that must characterize sentencing, as all other acts of judgment.

Although the discretion left to the judge is wide, the doctrines and principles

See Crimes Act 1900 (ACT) ss 429, 429A and 429B; Crimes Act 1914 (Cth) s 16A; Sentencing Act 1995 (NT), s (5)(1) and (2); Penalties and Sentences Act 1992 (Qld) s 9; Criminal Law (Sentencing) Act 1988 (SA) s 10; Sentencing Act 1997 (Tas) s 3 purposes o f the Act (limited); Sentencing Act 1991 (Vic) s 5; Sentencing Act 1995 (W A ) s 6. New South Wales has recently enacted sentencing legislation which is mainly procedural in nature, see Crimes (Administration o f Sentences) Act 1999 (NSW), and Crimes (Sentencing Procedure) Act 1999 (NSW); Crimes Legislation Amendment (Sentencing) Act 1999 (NSW).

The word “ guidelines” in conjunction with sentencing has acquired many different meanings, which are discussed below at 1.1. It is used here in the sense o f legislative guidelines such as those contained in s 9 Penalties and Sentences Act 1992 (Qld).

See House v The King (1936) 55 CLR 499. See also discussion o f the relationship between appellate review and discretion in Don Weatherburn, “Appellate Review, Judicial Discretion, and the Determination of Minimum Periods” (1985) 18 The Australian and New Zealand Journal o f Criminology 272, and criticisms in Richard Fox, “Controlling Sentencers” (1987) 20 The Australian and New Zealand Journal o f Criminology 218; 226-221. See also discussion in David Brown et al, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and

201

established by the Common Law in regard to sentencing provide the chart that

both relieves the judge from too close a personal involvement with the case in

hand, and promotes consistency of approach on the part of individual judges.14

Until recently in Australia there was very little threat to the maintenance of a wide

judicial discretion in sentencing, however developments over the past five years or so

have begun to encroach on this.15 The justifications for the change have not (as might

have been expected to have been the case), been expressly based on just deserts and

notions of consistency and fairness; but on apparent perceptions of the need to increase

severity, based on law and order considerations.16 The most dramatic of the changes

has been the controversial introduction by the Northern Territory of mandatory

minimum periods of imprisonment for adult17 and juvenile18 offenders on a range of

different charges, initially property offences. Since 1999, the Northern Territory has

come under increased national19 and international pressure20 to ameliorate the harsh

Commentary on Criminal Law and Process in New South Wales, 3rd ed, The Federation Press, Sydney, 2001, at 12.8.

[1977] 1 NSWLR 594, 597 (Street CJ), delivering the judgment o f the court. This observation on judicial discretion has been cited with approval in a number o f subsequent cases, see Anderson (1987) A Crim R 146, 158 (CCA NSW); Potter (1994) 72 A Crim R 108, 114 (CCA NSW ); Leucus (1995) 78 A Crim R 40, 49 (CCA W A); Carmody (1998) 100 A Crim R 41, 47 (C A Vic).

George Zdenkowski, “Sentencing Trends: Past, Present and Prospective” in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000, 173-180; George Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” (2000) 12 Current Issues in Criminal Justice 58, 58. Fox notes that the pressure for change began much earlier with the Mitchell Committee Report in 1973, and the ALRC and Victorian Sentencing Committee Reports, see Richard Fox, “Controlling Sentencers” (1987) 20 The Australian and New Zealand Journal o f Criminology 218,218-219.

Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 15, 173; Dianne Johnson and George Zdenkowski, Mandatory Injustice: Compulsory Imprisonment in the Northern Territory, Centre for Independent Journalism, Sydney, 2000, 13; Russell Hogg, “Mandatory Sentencing Laws and the Symbolic Politics o f Law and Order” (1999) 22 UNSW Law Journal 262; Neil Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories” (1999) 22 University o f New South Wales Law Journal 267. Law and order is discussed in detail in chapter 7.

See sections 78A - 78BB Sentencing Act 1995 (NT), and further discussion at 4.3 below.

See s 53AE-53AG Juvenile Justice Act 1996 (N T ) which applies mandatory detention o f 28 days for second property offences for offenders aged 15 to 17 years. Since July 1999, a sentencing court has the option o f requiring the offender to participate in a diversionary program. For further references, see Johnson and Zdenkowski, above n 16. See also discussion in Helen Bayes, “Punishment is Blind: Mandatory Sentencing o f Children in Western Australia and the Northern Territory” (1999) 22 UNSW Law Journal 286.

A Private Senator’s Bill, the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 was introduced into the Australian Senate on 25 August 1999 by Senators Brown, Bolkus

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effect of the law, particularly with respect to Indigenous Australians and juvenile

offenders. In July 2000, the Territory Government came to an agreement with the

Commonwealth for a $20 million four year plan to lessen the impact on juveniles.23 * 20

91

and Greig. The Bill was based on the external affairs power and Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights o f the Child (CROC). The Bill had the purpose o f invalidating any Commonwealth, State or Territory law that requires courts to impose mandatory detention for offences committed by children. See further information in Bills Digest No 62 1999-2000, Parliament of Australia, Parliamentary Library. The Bill was passed by the Senate, but was not supported by Government in the House o f Representatives. See also discussion in Johnson and Zdenkowski, above n 16, 58-60. See also George Zdenkowski, “New Challenge to NT Mandatory Sentencing: Bob Brown’s Abolition o f Compulsory Imprisonment Bill 1998” (1999) 4(18) Indigenous Law Bulletin 16; and Kate Warner, “Sentencing Review 1999” (1999) 24 Criminal Law Journal 355, 355-359.

It has been argued that the NT mandatory sentencing regime may infringe aspects of the International Covenant on Civil and Political Rights (ICCPR); see discussion in George Zdenkowski, “Mandatory Imprisonment of Property Offenders in the Northern Territory” (1999) 22 UNSW Law Journal 302, 311 and Dianne Johnson and George Zdenkowski, Mandatory Injustice: Compulsory Imprisonment in the Northern Territory, Centre for Independent Journalism, Sydney, 2000, 55. See also the detailed discussion o f the international law obligations in Martin Flynn, “ International Law, Australian Criminal Law and Mandatory Sentencing: the Claims, the Reality and the Possibilities” (2000) 24 Criminal Law Journal 184. In July 2000, a complaint under the ICCPR was made to the UN Human Rights Committee alleging “cruel and inhuman treatment” o f an Indigenous man, known as “X ” : Debra Jopson, “Cherie Booth Tells UN of ‘Cruel and Inhuman Punishment’” , Sydney Morning Herald, Sydney,20 July 2000. See comment on this in Sarah Pritchard, Address on International Perspectives to UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000; and Sarah Pritchard, Address on International Perspectives to UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000 (Angela Ward was junior counsel in the mandatory sentencing complaint to the UN Human Rights Committee).

Mandatory sentencing is said to be increasing the incarceration o f indigenous people, with the Territory imprisoning four times as many Indigenous Australians as any other State or Territory in Australia. Indigenous offenders comprise 73% o f the prison population in the Territory, and the adult imprisonment rate increased by 40% between June 1996 and March 1999. Seventy- five percent of juveniles in detention were indigenous people. Source: John Sheldon and Kirsty Gowans, Dollars Without Sense: A Review o f the Northern Territory’s Mandatory Sentencing Laws, North Australian Aboriginal Legal Aid Service (available on-line at http://ms.dcls.org.au/Dollars_Sense.htm), Darwin, downloaded August 2000.

In May 2000, amendments to the Juvenile Justice Act 1996 (NT ) were passed with the effect that a “juvenile” was defined as a child who had not attained the age o f 18 (previously 17), thus ameliorating the effect of the mandatory sentencing laws on 17 year old youths who would have previously been dealt with as adults. The change took effect from 1 June 2000. Amendments were also made in July 1999 to allow magistrates to order juveniles attend a diversionary program for a second property offence instead o f mandatory 28 days’ detention.

“ALP Slams Mandatory Sentencing Deal” , ABC News Online, 28 July 2000. According to this report, the agreement involves police sending young offenders to a diversionary program for offences involving property worth less than $100, where there has been no unlawful entry. The $20 million was later withheld by the Commonwealth due to a perceived lack o f progress in implementing the diversionary programs as agreed. See Louise Dodson, “Canberra Withholds $20m from NT” , The Age, Melbourne, 1 September 2000. Despite this, the NT Government claimed that the Government had put programs in place as agreed: Hon Denis Burke, “New

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For the past twenty-five years, the issue of whether or not to limit sentencing discretion

in the hands of judges has occupied commentators and legislatures alike.24 The

judiciary has not been silent in this debate, coming out strongly in favour of maintaining

the discretion in the hands of judges.25 Michael Tonry states, with some justification,

that Australian judges appear to be as committed as are English judges to the notion that

judges in some sense “own” sentencing and that any encumbrances on this ownership

are inappropriate.26 Tonry notes that the judges’ belief in the “intuitive synthesis”

approach is not unique to Australia, also being a feature of sentencing in England,

Wales and Austria.27

The three main themes on judicial discretion that emerge from the interviews and are

discussed in this chapter, are the importance placed on judicial discretion and judicial

“ownership” of sentencing; curbs on sentencing and the terminology of restraint; and

issues of consistency and disparity. The chapter concludes with a discussion on

sentencing options.

1.2 Sentencing guidelines

“Sentencing guidelines” is an ambiguous term which has acquired different meanings in

various jurisdictions. As the phrase will recur frequently in this chapter in disparate

contexts, it is important to differentiate between those meanings.

Mandatory Sentencing Regime Underway Despite Federal Claims” , Media release from Office o f the Chief Minister, NT, Darwin, 1 September 2000.

Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” , above n 15,58.

See eg, Justice Margaret McMurdo, Why the Sentencing Discretion Must be Maintained, Aspen, Colorado, 3 January 2000, (available on-line at:

http://www.courts.qld.gov.aU/publications/articles/articlesca.htm#McMurdo); Justice McMurdo is President of the Queensland Court of Appeal; and The Honourable JJ Spigelman, Opening Address to the UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000, 3. In the UK, see Lord Taylor, “Judges and Sentencing” (1993) 38 Journal o f the Law Society o f Scotland 129, 129. Tonry notes that in the United States many judges have opposed moves which have severely restricted judicial discretion in many US jurisdictions, see Tonry, Sentencing Matters, above n 7, 7.

Tonry, Sentencing Matters, above n 7, 178.

Ibid.27

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In Queensland, “ sentencing guidelines” is the heading to s 9 of the Penalties and

Sentences Act 1992 (Qld), and refers to the purposes for sentencing and factors to which

the court must have regard in passing sentence. This terminology is also used in

sentencing legislation in Victoria,28 and the Northern Territory.29 When the judges in

this study are referring to “guidelines” they are normally referring to the sentencing

guidelines under s 9 of the Penalties and Sentences Act 1992 (Qld).30

In New South Wales, “guidelines” refers also to sentencing guidelines set by Court of

Criminal Appeal judgments, a practice which commenced in 1998 on the initiative of

the Court itself.31 There are also provisions for guideline judgments in sentencing

legislation in New South Wales,32 and Western Australia.33 The English Court of

Appeal has been issuing guideline judgments since the 1970s, initiated by Lord Justice

Lawton and further developed by Lord Chief Justice Lane.34 The English guidelines

normally set a tariff, and differentiate between, as well as analysing aggravating and

mitigating factors in relation to the relevant offence.35 Canada and New Zealand36 have

Sentencing Act 1991 (Vic) s 5.Sentencing Act 1995 (NT) s 5.Where the judges are referring to other types of guidelines, it is obvious from the context.The first guideline judgment was R v Jurisic (1998) 45 NSWLR 209. Jurisic and guideline judgments are discussed further in this chapter at 4.2. See generally, Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?”, above n 15, 63-65.See Part 3 Division 4 Crimes (Sentencing Procedure) Act 1999 (NSW). See in particular s 37(1), which empowers the Court of Criminal Appeal to give a guideline judgment on the application of the Attorney-General.Sentencing Act 1995 (WA), s 143. The Western Australian Court of Criminal Appeal has thus far declined to give guideline judgments despite requests to do so. See discussion of this in Neil Morgan and Belinda Murray, “What’s in a Name? Guideline Judgments in Australia” (1999) 23 Criminal Law Journal 90, and Neil Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?” (1999) 28 Western Australia Law Review 259 at 267-270.See “Sentencing - Guideline Judgments” (1998) 10 Judicial Officers Bulletin 67, 67.Ibid. For further discussion of the English guidelines, see Andrew Ashworth, “Techniques of Guidance on Sentencing” [1984] Criminal Law Review 518; Martin Wasik and Ken Pease (eds), Sentencing Reform: Guidance or Guidelines?, Manchester University Press, Manchester, 1987; Linda Harvey and Ken Pease, “Guideline Judgments and Proportionality in Sentencing” [1987] Criminal Law Review 96; Gavin Dingwell, “The Court of Appeal and ‘Guideline’ Judgments”(1997) 48 Northern Ireland Legal Quarterly 143; Andrew Ashworth and Andrew von Hirsch, “Recognising Elephants: The Problem of the Custody Threshold” [1997] Criminal Law Review 187; Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed, Oxford University Press, Melbourne, 1999, 33-34.See further Geoff Hall, “Reducing Disparity by Judicial Self-Regulation: Sentencing Factors and Guideline Judgments” (1991) 14 New Zealand Universities Law Review 208

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also used sentencing guideline judgments,* 34 * * 37 * * however a proposal by the Victorian

Sentencing Committee to introduce the practice of binding guideline judgments was

rejected by the Parliament because of Opposition support for a majority of Supreme

Court judges who were of the view that guidelines were unnecessary because the legal

community was small and close-knit (compared with England), and that it would unduly39restrict judicial discretion.

In the United States, “sentencing guidelines” has a different meaning again 40 In 1972,

Judge Marvin Frankel mooted the idea of sentencing commissions which would develop

rules, or guidelines, for sentencing,41 thus in effect vesting discretion not in the

legislature or the sentencing court, but in an appointed commission 42 The sentencing

commission proposal was first adopted by four States; Minnesota,43 Oregon,

Mainly in order to set a tariff for an offence: see “Sentencing - Guideline Judgments”, above n34, 67, and thus less comprehensive than either the UK or Jurisic style guidelines.See Victorian Sentencing Committee Report, above n 5, 192-195; 218-221.Ibid 194, and Fox and Freiberg, above n 35, 34.In relation to the operation of US guidelines, see generally Tonry, Sentencing Matters, above n 7; Michael Tonry, “Sentencing Commissions and Their Guidelines” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 17, The University of Chicago Press, Chicago, 1993.Marvin Frankel, Criminal Sentences: Law Without Order, Hill and Wang, New York, 1972. See later comment by Frankel on the operation of guidelines in Marvin Frankel and Leonard Orland, “Fourteenth Annual Review of Criminal Procedure: United States Supreme Courts and Courts of Appeals 1983-84: Sentencing Commissions and Guidelines” (1984) 73 Georgetown Law Journal 225; Marvin Frankel, “Sentencing Guidelines: A Need for Creative Collaboration”(1992) 101 Yale Law Journal 2043; Marvin Frankel and Leonard Orland, “A Conversation About Sentencing Commissions and Guidelines” (1993) 64 Colorado Law Review 655; and Michael Tonry, “The Success of Judge Frankel’s Sentencing Commission” (1993) 64 Colorado Law Review 713. It has been said that idea for a sentencing commission which develops fixed principles originated in the UK in 1893; see discussion in Michael Allen, “Sentencing Guidelines: Lessons to be Learned?” (1988) 39 Northern Ireland Legal Quarterly 315.Paul Robinson, “The Federal Sentencing Guidelines: Ten Years Later: An Introduction and Comments” (1997) 91 Northwestern University Law Review 1231, 1232. See generally on US sentencing guidelines, Richard Frase, “Sentencing Guidelines in Minnesota and Other American States: A Progress Report” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995; Anthony Doob, “The United States Sentencing Commission Guidelines: If you don’t know where you are going, you might not get there” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995.For a detailed description and defence of the Minnesota guidelines, see Richard Frase, “The Uncertain Future of Sentencing Guidelines” (1993) 12 Law and Inequality 1; see also Frase, “Sentencing Guidelines in Minnesota and Other American States: A Progress Report”, above n42. On the construction of the guidelines, see Andrew von Hirsch, “Constructing Guidelines for Sentencing: The Critical Choices for the Minnesota Sentencing Guidelines Commission” (1985) 5 Hamline Law Review 164.

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Washington and Pennsylvania.43 44 By 1996, 25 States had created sentencing

commissions, and sentencing guidelines were either in effect or development in 20

States 45 Guidelines for the United States federal jurisdiction were introduced by the

United States Sentencing Commission in 1987,46 but not without substantial controversy

as to their operation47 The operation of United States sentencing guidelines is

discussed later in this chapter at 4.4.

2 C o n s is t e n c y

Trying to achieve consistency is what it is all about.48

Consistency in sentencing, and conversely avoiding undue disparity, has often been said

to be a fundamental principle of criminal law and sentencing.49 Consistency was one of

the main reasons cited in R v Jurisic50 for the promulgation of judicial sentencing

guidelines.51 According to New South Wales Chief Justice Spigelman in that case:

Andrew von Hirsch, “Proportionality and Parsimony in American Sentencing Guidelines: The Minnesota and Oregon Standards” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995, 149.Tonry, Sentencing Matters, above n 7, 10; Richard Frase, “State Sentencing Guidelines: Still Going Strong” (1995) 78 Judicature 173. It is important to note that all sentencing guidelines systems are not the same: see Frase, “The Uncertain Future of Sentencing Guidelines”, above n43. See also Lisa Stansky, “Breaking Up Prison Gridlock” (1996) 82 ABA Journal 70, withrespect to the development of state guidelines schemes.See description of the guidelines and criticism of their operation in Tonry, Sentencing Matters,above n 7, chapter 3; also Doob in Clarkson and Morgan, above n 42. For an analysis of the operation of the guidelines by a member of the commission, see Deanell Reece Tacha, “Serving This Time: Examining the Federal Sentencing Guidelines After a Decade of Experience” (1997) 62 Missouri Law Review 471. The legislative history of the federal guidelines, and their interpretation by Courts of Appeal are analysed in Rebecca Spiro, “Federal Sentencing Guidelines and the Rehnquist Court: Theories of Statutory Interpretation” (2000) 37 American Criminal Review 103. Details of the US Sentencing Commission and the Guidelines Manual are available on the US Sentencing Commission’s website: http://www.ussc.gov/.Tonry describes them as the “most controversial and disliked sentencing reform initiative in US history”: Tonry, Sentencing Matters, above n 7, 72.Judge V.See eg, Victorian Sentencing Committee Report, above n 5, 146.(1998) 45 NSWLR 209.See discussion on guidelines at 1.1, above.

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The preservation of a broad sentencing discretion is central to the ability of the

criminal courts to ensure that justice is done in all the extraordinary variety of

circumstances of individual offences and individual offenders. However, public

confidence in the administration of justice requires consistency in sentencing

decisions. As I have said, inconsistency is a form of injustice. Indeed, a point

can be reached where sentences issued by a few judges may be so widely

regarded as inadequate that - despite the possibility of correction on appeal - the

legitimacy of the legal system itself may be called into question by a significant

section of the community.52 *

The existence of judicial discretion in the Queensland and Australian sentencing

systems means that it is the judge or magistrate who determines the sentence, with very

little legislative regulation. That discretion must of course be exercised within the

parameters set by maximum penalties and other restrictions such as available sanctions.

Because sentences are determined on an individual basis, the issue of consistency

between different sentences, and with that, the issue of disparity inevitably arises. As

Richard Fox and Arie Freiberg point out, disparity can arise with respect to the

consistency of the same sentencer in treating like offenders in like cases, the consistency

of different sentencers in the same jurisdiction dealing with like cases, or cases dealt

with in different localities within a jurisdiction or between jurisdictions.54 To this list

can be added disparity between co-offenders.55

Issues of consistency and disparity have arisen in the various reviews of sentencing

which have taken place in the past twenty years.56 Numerous reasons have been put

(1998)45 NSWLR 209, 221.Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?”, above n 15.Fox and Freiberg, above n 35, para 1.220. See also Victorian Sentencing Committee Report, above n 5, 147-148.Lowe v The Queen (1984) 154 CLR 606.See Australian Law Reform Commission, Sentencing: Report No 44, Australian Government Publishing Service (ALRC 44), Canberra, 1988, 156-161; Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987, 71-76; Victorian Sentencing Committee Report, above n 5, 146-157; New South Wales Law Reform Commission, Sentencing: Discussion Paper No 33, New South Wales Law Reform Commission, Sydney, 1996, 30-35; New South Wales Law Reform Commission, Sentencing (Report No 79), Law Reform Commission Publications, Sydney, 1996.

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forward to explain such alleged disparity, however Fox and Freiberg note that blame is

frequently attributed to the application of different penal philosophies, caused by

legislative inconsistency in sentencing policy.58 Not all commentators would agree that

differing penal philosophy is the only basis for such disparity, arguing that it is a

complex mix of institutional and social factors, and individual perspectives and

decision-making skills of the individual sentences59 Some studies of disparity

involving identical facts given to sentencers are able to show significant variation in

outcomes.60 Despite a study by Weatherbum showing substantial disparity in

sentencing between two groups of District Court judges in New South Wales,61 the New

South Wales Law Reform Commission denied that the study provided evidence of

general sentencing disparity in that court,62 and concluded it could not be inferred from

such studies that widespread sentencing disparity existed.63

Disparity in sentences between offenders charged with similar offences may be justified

in particular cases based on different personal circumstances, particularly so in the case

of offenders with differing criminal histories.64 Unjustified disparity however is a

matter of continuing concern. Disparity between co-offenders is often referred to as the

“parity principle” , which was restated by the High Court in Postiglione v The Queen:

57

There is no agreement that disparity actually exists in the system, and if so to what extent: see later discussion in this chapter at 2.1. See also Fox and Freiberg, above n 35, 29-30.Fox and Freiberg, above n 35, 30.See for example, Jeanette Lawrence and Ross Homel, “Sentencing in the Magistrates’ Courts: The Magistrate as Professional Decision Maker” in Ivan Potas (ed), Sentencing: Problems and Prospects, Proceedings of a Seminar held at Australian Institute of Criminology, 18-21 March 1986, Canberra, 1987.See for example a brief study of sentencing by 84 magistrates at an annual conference, carried out by the NSW Deputy Chief Magistrate in 1986: Kevin Anderson, “Sentencing in Magistrates’ Courts” in Ivan Potas (ed), Sentencing: Problems and Prospects, Proceedings of a Seminar held at Australian Institute of Criminology, 18-21 March 1986, Canberra, 1987. See also discussion of pre-guidelines disparity in the US in Justice Stephen Breyer, “Federal Sentencing Guidelines Revisited” (1999) 14 Criminal Justice 28.Don Weatherburn, Sentence Disparity and its Impact on the NSW District Criminal Court, New South Wales Bureau of Crime Statistics and Research, Sydney, 1994.NSWLRC, Sentencing: Discussion Paper No 33, above n 56, 33.NSWLRC, Sentencing (Report No 79), above n 56, 8-11.Lowe v The Queen (1984) 154 CLR 606. Refer also to s 9(2)(f), and s 11(a) Penalties and Sentences Act 1992 (Qld), which allows the court to consider “the number, seriousness, date, relevance and nature of any previous convictions of the offender”.

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However, the parity principle, as identified and expounded in Lowe v The

Queen, recognises that equal justice requires that, as between co-offenders, there

should not be a marked disparity which gives rise to “a justifiable sense of

grievance” . If there is, the sentence in issue should be reduced, notwithstanding

that it is otherwise appropriate and within the permissible range of sentencing. ■ 65options.

2.1 Disparity

The existence of undue disparity in sentencing should be of significant concern, as there

is a general principle that like cases should be treated in a like manner.66 * * The

distinction needs to be made however between justified and unjustified disparity, as

disparity between sentences may be clearly justified on the grounds of seriousness of

the offence, number of previous convictions, youth or a multitude of other

considerations. A definition of unjustified disparity was provided by the Victorian

Sentencing Committee:

Unjustified disparity in sentencing is the imposition of dispositions of differing

severity or the same disposition but of differing severity on two or more

individuals who have, or the same individual who on two or more occasions has,

committed an offence of the same degree of seriousness where that difference in

disposition is caused by a factor other than the one which gives a legitimate68reason for differentiating the dispositions in the manner which has occurred.

According to Tonry, “There is unfortunately, no way round the dilemma that sentencing

is inherently discretionary and that discretion leads to disparities.”69 Research in the

(1996) 189 CLR 295 (references omitted).Victorian Sentencing Committee Report, above n 5, 146.See s 9(2)&(4), which set out the factors to be taken into account in sentencing offenders in Queensland. In relation to previous convictions generally and their relevance, see Andrew von Hirsch, “Desert and Previous Convictions in Sentencing” (1981) 65 Minnesota Law Review 521; and Martin Wasik and Andrew von Hirsch, “Section 29 Revised: Previous Convictions in Sentencing” [1994] Criminal Law Review 409.Victorian Sentencing Committee Report, above n 5, 148.Michael Tonry, “Sentencing Reform Across National Boundaries” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995, 271.

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United States has suggested that pre-guideline disparity was a major problem in the

federal courts.70 In the current system in most Australian jurisdictions, because

individual judges sentence offenders (and are accorded considerable discretion), there is

potential for the sentences to differ. This was acknowledged by several of the judges in

the present study.71

Such factors as religious beliefs72 and social and cultural background73 have been

suggested to have a significant influence on sentencing. The Crown Court study

postulated that the judiciary (in that study) consisted of persons from a “relatively

narrow social background” who “project the views of their own social groups into their

sentencing decisions” .74 In that study, researchers were able to collect quite detailed

data on the social background of the judges. That information was not collected from

judges interviewed in the present study, due to the anonymity required of the ethicalnc

clearances, and conditions under which the judges agreed to take part.

2.2 The link between unstructured discretion and sentencing disparity

American researcher Michael Tonry in his book Sentencing Matters16 points out that77unstructured discretion may have an association with unwarranted disparity. He notes

Kevin Clancy et al, “Sentence Decisionmaking: The Logic of Sentence Decisions and the Extent and Sources of Sentence Disparity” (1981) 72 The Journal of Criminal Law and Criminology 524; William Rhodes, “Federal Criminal Sentencing: Some Measurement Issues with Application to Pre-Guideline Sentencing Disparity” (1991) 81 Journal of Criminal Law and Criminology 1002. See also Jay Albanese, “Concern About Variation in Criminal Sentences: A Cyclical History of Reform” 75 Journal of Criminal Law and Criminology 260, where Albanese traces the history of dissatisfaction with disparity in the US and the responses to this.See discussion at 2.3, below.See discussion of the literature on this issue in chapter 1 at part 6.Crown Court Study, above n 2, 32-33.Ibid 32.See discussion of this in chapter 3. Limited background information on the judges of the Supreme and Districts Court of Queensland is available on the Queensland Courts Page at http://www.courts.qld.gov.au/ (downloaded August 2000). Of the information publicly available on the website from the 24 justices of the Supreme Court, 12 provide full details of educational background. Ten of these attended private schools, and two state schools; however this information cannot be correlated with the findings of this study, as a number of the judges were appointed after the study was conducted, and only 10 Supreme Court judges participated in any event. Comparatively little information is available regarding District Court judges.Tonry, Sentencing Matters, above n 7.Ibid 177.77

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this is a problem which is not necessarily self evident to many judges, and in many

countries the prevailing judicial ethos has rejected the need to structure sentencing

discretion, together with the appropriateness of doing so. Tonry also points out that in

the United States many judges are now prepared to agree to more constraints on judicial

discretion. As more US jurisdictions are moving to adopt various schemes involving

sentencing guidelines, they may have no choice but to agree. He does point out

however that not every jurisdiction should follow the American experience with

guidelines and attempt to structure sentencing discretion, as “the cure may be worse

than the ailment” . In his view, the American “cure” should be used depending on the

distribution and severity of sentences that characterise the legal system. If few

offenders receive prison sentences, and these are short, the human cost of unwarranted

disparity may be slight; however if the converse is true, and prison sentences are often

severe, Tonry states that the risks of inflexibility may be worth taking.81

Andrew Ashworth notes that it is not hard to obtain agreement that the elimination of

judicial discretion would sacrifice the courts’ ability to do justice by way of

individualising the sentence in a particular case.

But it is equally objectionable to have wide judicial discretion which allows

judges to decide on priorities among the rationales of sentencing, and which

leaves issues of principle to piecemeal judicial development. This fails to

accord with the principle of legality; it gives no weight to the need for maximum

certainty; it reduces the amount of judicial accountability; and it does all these

things in a sphere that concerns the deprivation of liberty, or at least restrictions

on liberty. To conclude by stating that there must be a “balance’ between rule

and discretion would be insufficient. Those who adopt the legality approach to

sentencing reform should insist that we strive to articulate rules and principles so

far as possible, and that the exercise of discretion should always be accompanied

78

79

80

81

Ibid.Ibid 181-182. Ibid 187.Ibid.

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by the giving of concrete reasons that relate the sentence clearly to the legal82structure.

The Queensland sentencing system, in common with other Australian jurisdictions,

gives the sentencer a central and powerful role in the process. According to Tonry,

because judicial discretion is a major part of this process, the views of the sentencer on

sentencing assume central importance, and equally can pose a dilemma for policy

makers.83 * * Because some changes to the law may be premised on criticism of judges, (or

at least interpreted as such); they can be opposed by judges and be difficult to

implement. On the other hand, if deference is given to the views of the judiciary, Tonry

states that major policy shifts are unlikely to occur. The implementation of the United

States Federal Guidelines, which were unpopular with the judiciary, was difficult andOJT

marked by judicial resistance to the changes; hardly surprising when the nature of

many of those changes is considered.86

If judges are given a free rein in interpreting sentencing guidelines87 (ie, relatively

unlimited judicial discretion instead of a prescriptive system), what are the

consequences? There is a belief among some commentators that unjustifiable disparity

between judges and sentencers has been a major concern, and that this in turn has led to88a breakdown of confidence in the system, particularly by the public at large.

According to Austin Lovegrove, disparity in sentencing has been the “inevitable result”

of the failure to set out the principles governing the exercise of discretion resulting in

inconsistent application of policy; lack of a framework for judges to follow when

Andrew Ashworth, “Reflections on the Role of the Sentencing Scholar” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995, at 260.Michael Tonry, “Judges and Sentencing Policy - The American Experience” in Colin Munro and Martin Wasik (eds), Sentencing, Judicial Discretion and Training, Sweet and Maxwell, London, 1992,137.Ibid.See Doob in Clarkson and Morgan, above n 42.See further, footnotes 45 and 46, above.As used in the Queensland sense of factors to be taken into account.See eg, Weatherburn, above n 61; Don Weatherburn and Bronwyn Lind, “Sentence Disparity, Judge Shopping and Trial Court Delay” (1996) 29 The Australian and New Zealand Journal of Criminology 147; Austin Lovegrove, “Sentencing Guidance and Judicial Training in Australia” in Colin Munro and Martin Wasik (eds), Sentencing, Judicial Discretion and Training, Sweet and Maxwell, London, 1992.

213

making sentencing decisions resulting in inconsistency; and the complexity of

sentencing where the judge must process a large volume of information, with the

potential for the inappropriate omission or inclusion of factors.89

2.3 Does unjustified disparity exist?

There is disagreement as to the fundamental question of whether unjustified disparity

exists in the system at all, with some judges in particular arguing that such disparity

does not necessarily exist. The submission by the majority of judges of the Supreme

Court of Victoria to the Victorian Sentencing Committee disputed the existence of

widespread disparity. According to that submission:

Those who sit in the Court of Criminal Appeal in Victoria would not subscribe

to the view that there is such unjustified disparity amongst judges in Victoria

though some judges tend to be more severe or more lenient in sentencing than

others. This will always be the case, but the system of review by the Court of

Criminal appeal should serve to correct a departure from what that Court

considers to be within an appropriate range.90

Sir Guy Green, formerly Chief Justice of Tasmania, also challenges the notion that there

is widespread disparity in sentencing in Australia, and calls into question some of the

assumptions which lie behind those claims.91 He notes that since the 1970s there have

been criticisms that the sentencing discretion is exercised arbitrarily and inconsistently,

with a lack of uniformity and widespread disparity. “ He sees a danger in the sheer

volume of the criticisms being seen as lending support to the conclusion that the system

is deficient, and comments that just because these assertions of disparity and problems93are “frequently and loudly repeated does not make them valid” .

89

90

91

92

Lovegrove (ibid) 208-209.Victorian Sentencing Committee Report, above n 5, Appendix A, A-6.Sir Guy Green, “The Concept of Uniformity in Sentencing” (1996) 70 Australian Law Journal 112.

93

Ibid 113. Ibid.

214

Commentators are accused by Sir Guy Green of taking for granted that there are serious

defects in the system, and being more concerned with promoting reforms. The

Australian Law Reform Commission’s interim report on the sentencing of Federal

offenders94 is cited as an example of such an approach (although he later acknowledges

that the final report by the ALRC ,95 produced by a differently constituted commission,

was more circumspect, acknowledging that there was little research on the extent of

unjustified disparity in Australia). Other criticisms are levied at commentators and

critics for pursuing a ‘frankly ideological agenda’ .96 He also notes that the Victorian

Sentencing Committee concluded that all of the available research on disparity has some

drawback or flaw, and that there was no ready means by which sentencing disparity can

be proven to a satisfactory level.97

In a thorough and detailed analysis of disparity and other perceived problems of the

sentencing system, Lovegrove puts the view that much of the recent sentencing reforms

have sprung from a view that there is disparity in the sentencing of offenders.98 He

draws a distinction between the approach where disparity is seen as the problem, and

that which regards disparity as a symptom, the latter being the preferred method.99

Lovegrove however, in previous writings,100 acknowledges that there are inevitable

weaknesses in evidence offered in support of disparity, such as a lack of adequate

controls, however he notes that the case for doing something about sentencing does not

stand or fall on the strength of such evidence, as disparity is the inevitable consequence

Australian Law Reform Commission, Interim Report into Sentencing Federal Offenders: Report no 15, Australian Government Publishing Service (ALRC 15), Canberra, 1980.ALRC 44, above n 56.Green, above n 91, 114.Victorian Sentencing Committee Report, above n 5 (Vol 1), 154, para 4.4.23.Austin Lovegrove, “Structuring the Judicial Sentencing Discretion: Some EmpiricalConsiderations on Reforms” in Andros Kapardis (ed), Sentencing: Some Key Issues, La Trobe University Press (special issue of Law in Context vol 13(2) 1995), Melbourne, 1995, 143. Lovegrove was also a member of the Victorian Sentencing Committee.Ibid 144. See also discussion in Austin Lovegrove, “An Empirical Study of Sentencing Disparity Among Judges in an Australian Criminal Court” (1984) 33 International Review of Applied Psychology 161.Austin Lovegrove, Judicial Decision Making, Sentencing Policy, and Numerical Guidance, Springer-Verlag, New York, 1989.

215

of judicial discretion.101

Two of the judges in the present study acknowledged the possibility of disparity under

the present system of judicial discretion:

Judges are individuals and if six different judges are given the same sentencing

scenario, there will be six different sentences, although I believe they would not

be very far apart.102

Discretion may be exercised differently by different judges. As pointed out in

many cases, that does not mean that the particular judge is wrong if someone

else would have exercised their discretion in a different way. It is probably the

most unpredictable aspect of sentencing.103

The comments of the judges generally did not indicate that disparity in sentencing was

perceived to be a problem, with only two judges making comments on the issue. In

both cases, there were attempts made to downplay the significance of any disparity.

The majority of judges interviewed were clearly of the view (as will be seen below),

that allowing a wide discretion was critical so that individual factors could be taken into

account, so that the court could come to a “fair” outcome.

3 T h e im p o r ta n c e o f ju d ic ia l d is c r e t io n

The judges in this study were overwhelmingly of the view that a wide judicial discretion

is necessary in sentencing, and that the sentencing judge is in the best position to make

decisions about the sentence to be imposed because of their experience and knowledge.

In addition, the point was made that the judge at first instance has the offender before

101

102103

Ibid, 3-4. See also discussion in Austin Lovegrove, “An Empirical Study of Sentencing Disparity Among Judges in an Australian Criminal Court” (1984) 33 International Review of Applied Psychology 161.Judge I.Judge L.

216

them when sentencing, and has access to all of the relevant information. Having the

opportunity to see the offender was considered to be of critical importance.

There should be some judicial discretion and the reason is because the judge has

the flesh and blood of the person in front of him or her, and the full

circumstances of that person there. Having had experience in sentencing people,

and also sitting on the Court of Appeal, the Court of Appeal misses the human

factor of having the individual person there in front of them. There should be

individual judge’s discretion even if just because of the personality of the judge,

as it avoids a certain mechanical dehumanised aspect of the sentence.104

A wide discretion was also seen by some of the judges as necessary to take into account

the variety of facts in different situations, and to tailor the sentence to fit those

individual circumstances.

Exceptional cases (ie, those which don’t fall within the norm) are quite common.

The general presumption is never going to be fair in such cases. There is such a

variety in the circumstances of offence and offender.105

Judicial discretion is very important, because it is important to tailor sentencing

to individual circumstances. There is more to sentencing than just the matter of

bare facts. You need to get some idea of the personality of the person you are

dealing with.106

Whilst a lot of families are untouched by crime, we are now seeing many

“respectable” families caught up in offences such as drug offences. Particularly

in such cases, the judge would lose the capacity to take into account personal

circumstances if the discretion were taken away. Judicial discretion allows the

court to become more lenient and take into account such circumstances. In some

cases however the degree of violence involved will dictate the penalty and there

104

105

106

Judge X.

Judge D.

Judge A.

217

is very little discretion involved. In an appropriate case however, the nature of107the circumstances will affect your response as a judge.

Taking into account individual circumstances was not inevitably seen as mitigatory, but

necessary to be fair:

It doesn’t mean that I give any less of a sentence or I am going to give them a

lighter sentence because I am taking into consideration their personal

circumstances.108

Judicial discretion is very important in sentencing especially in the middle range.

This is particularly so where the sentence is an expression of social problems

especially where the offender is a drug user.109

Judicial discretion plays a pivotal role in the sentencing process. It is the judge’s

role to take all relevant factors into account and give a right and just sentence for

the offender, the victim, and the community. The exercise of the discretion may

differ (that is, the outcome) between different judges. ... The discretion to craft

a sentence for an individual case is basic to the criminal justice system. There

may be a range within which the case fits, but no two cases are the same. There

are differences in the offence, the accused and the victim.110

If you have a discretion you can tailor solutions within that discretion.111

Judicial discretion is absolutely vital, and it is important that it be the widest

possible discretion.112

107

108

109

110 111

Judge K.

Judge X.

Judge M.

Judge J.

Judge G.

Judge H.112

218

Wide sentencing discretion was defended on the same grounds in the Crown Court

study, where the judges said that it was “necessary to give proper effect to the varying

facts of individual cases” .113 See, for example, the following comment:

Judicial discretion is extremely important. It is the function of the judge who is

appointed to exercise judgment. It is a blend of experience and appreciation of

how serious the actual conduct is. The combination of circumstances involved

is infinite, unless there is discretion to make any appropriate order.114

This also accords with the stated views of other members of the judiciary:

In my view, the best approach to sound sentencing is to leave it to the judiciary

to exercise their experience and judgment subject to the monitoring and

guidance that I have mentioned. I deprecate the introduction of complex

statutory curbs and braces to restrict judicial discretion.115

The consequences of not having a wide discretion in the hands of the judges was seen to

be that injustices would follow:

Judicial discretion is the quintessence of sentencing. ... A sentencing judge

must have a discretion to fix the appropriate sentence in all the circumstances

within the proper range otherwise injustices will inevitably occur.116

It is important to have a discretion as a judge in sentencing. The less discretion

you give the sentencing tribunal, the more rigid the process, and the greater the

risk of injustice in a particular case. What I mean by this is that if the judge had

no discretion there would be no room for tailoring the case to meet the117circumstances of the offender.

113

114

115

116

117

Crown Court Study, above n 2, 60.Judge Y.Lord Taylor, “Judges and Sentencing” (1993) 38 Journal of the Law Society of Scotland 129. Judge F.Judge G.

219

Judicial discretion is essential. If it was sought to fetter the discretion, for

example telling judges they must impose a sentence of between five and seven

years, the community would quickly react adversely, and the sentence would be

unjust.118

Judicial discretion is the most important thing in sentencing, because the theory

is that it is the discretion which has to be wrong so as to bespeak error itself [on

an appeal against sentence] ,119

Sentencing isn’ t a formula - the judge has a lot of discretion. This can be

contrasted with the position in European courts where there is a lot of structure,

and there is almost an expected outcome.120

The spirited defence of judicial discretion that is so evident in this study confirms the

finding of the Crown Court study, which concluded:

All the judges whom we consulted insisted that the right to determine the form

and length of sentence in each case should be theirs, and firmly opposed any

suggestion of “ interference” by Parliament in the form of legislative restrictions

on sentencing. “The judges should be trusted” as one judge put it. A wide

sentencing discretion was defended as necessary to give proper effect to the

varying facts of individual cases.121

The notions of trust by one judge in the Crown Court study was also mentioned by a

judge in the present study who stated that: “Parliament by restricting discretion is saying

we don’t trust you.” " The judges in the present study were also firmly of the view that

judicial discretion in the hands of the judges was imperative to take account of the

individual circumstances in every case.

118

119

120 121

Judge K.Judge BB.Judge B.Crown Court Study, above n 2, 60.

220

While wide judicial discretion remains a policy, issues of consistency and disparity (as

discussed above) will inevitably be discussed. Tonry is critical of the judicial

“ownership” of sentencing on the grounds of fairness, as the outcome may in fact be the

opposite if disparity results.123

Unlimited judicial discretion has, however, been subjected to a number of limiting

factors in Australia in recent years, and the trend appears to be continuing. These

moves toward structuring discretion are discussed below.

4 S tru c tu r in g d is c r e t io n

4.1 Introduction

Until recently, there were few legislative restraints on judicial discretion in Australia.

This was in direct contrast to the situation in the United States, where the introduction

of sentencing commissions, guidelines and even grids have heavily restricted the ability

of the sentencing judge to tailor a sentence to fit individual circumstances.124

Zdenkowski identifies three recent developments in Australia as constituting

“potentially serious encroachments” on judicial discretion.125 These are sentencing

guideline judgments, mandatory sentencing schemes, and sentencing grids. To this list

can be added the introduction in Queensland of the concept of “ serious violent

offences” in Part 9A of the Penalties and Sentences Act 1992 (Qld). These are

discussed further below, and the judges’ comments on each analysed.

4.2 Guideline judgments

Judge Y. See more of the context of this statement at 4.3 below.Tonry, Sentencing Matters, above n 7, 181; see also Tonry, “Sentencing Reform Across National Boundaries”, above n 69, 271.See earlier discussion on the introduction of sentencing guidelines in the US at 1.1.Zdenkowski, “Sentencing Trends: Past, Present and Prospective”, above n 15, 173 - 180.

221

The use of the term “guidelines” to refer to sentencing guideline judgments126 has1 27already been noted above. Both Western Australia and New South Wales have

198 190enacted legislative provisions for guideline judgments, in 1995 and 1998

respectively.130 However the first use of a guideline judgment in Australia was by the

New South Wales Court of Criminal Appeal, on its own initiative in 1998, in R v

Juris ic ,131 a case of dangerous driving occasioning grievous bodily harm. The practice

has been generally welcomed by commentators, albeit with some reservations. In

addition, according to Chief Justice Spigelman, the judgment was well received by the

public and trial judges in New South Wales.133

The New South Wales Court of Criminal Appeal has subsequently issued a number of

other guideline judgments. These are: Henry134(armed robbery); R v Wong and

126

127

128

129

130

131

132

133

134

These are also referred to as judicial guidelines, see eg Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?”, above n 15. The term guideline judgment is used here to reflect terminology in the judgments themselves, and usage conventions in other jurisdictions.See 1.1 above.Sentencing Act 1995 (WA) s 143.Originally the legislative provision enabling this was contained in the Criminal Procedure (Sentencing Guidelines) Act 1998 (NSW), which inserted the provisions in the Criminal Procedure Act 1986 (NSW). This was later replaced by the Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 4. The 1999 Act was assented to on 8 December 1999, and commenced on 3 April 2000.In the case of Western Australia, this was because the WA Court of Criminal Appeal declined to issue guideline judgments when invited to do so, see Morgan and Murray, above n 33.(1998) 45 NSWLR 209. See commentary in see “Sentencing - Guideline Judgments”, above n 34, 67, Mr Justice P W Young, “Guideline Judgments in Criminal Appeals” (1999) 73 Australian Law Journal 13.Morgan and Murray, above n 33, Donna Spears, “Structuring Discretion: Sentencing in the Jurisic Age” (1999) 22 UNSW Law Journal 295, especially 299-300; Evelyn McWilliams, “Sentencing Guidelines: Who Should be the Arbiter, The Judiciary or Parliament?” (1998) 36 Law Society Journal 48; Nicholas Cowdery, “Guideline Sentencing: A Prosecution Perspective”(1999) 11 Judicial Officers Bulletin 57, 61; George Zdenkowski, “Judging the Judgments”, Sydney Morning Herald, Sydney, 15 October 1998; Kate Warner, “Sentencing Review 1998” (1999) 23 Criminal Law Journal 364, 366-369. There had in fact been calls for such an approach for some time, see Don Weatherburn, “Sentencing Principles and Sentencing Choice” (1987) 11 Criminal Law Journal 212, 227.The Hon JJ Spigelman, “Sentencing Guideline Judgments” (1999) 73 Australian Law Journal 876 (address to National Conference of District and County Court judges on 24 June 1999), 876. It has been reported that sentencing judges have, in large, applied the guidelines: Nicholas Cowdery, “Guideline Sentencing: A Prosecution Perspective” (1999) 11 Judicial Officers Bulletin 57, 59.(1999) 106 A Crim R 149. See also Ivan Potas, “Guidelines for the Sentencing of Armed Robbers” (1999) 11 Judicial Officers Bulletin 28.

222

Leung135 (drug trafficking); R v Ponfield136 (break and enter); and R v Thomson (guilty

pleas).137

According to Spigelman CJ in Jurisic, guideline judgments were seen as:

... having a useful role to play in ensuring that an appropriate balance exist

between the broad discretion that must be retained to ensure that justice is done

in each individual case, on the one hand, and the desirability of consistency in

sentencing and the maintenance of public confidence in sentences actually

imposed, and in the judiciary as a whole, on the other.138 *

Guideline judgments were also described as a “mechanism for structuring discretion,

rather than restricting discretion” . Guideline judgments are however intended to act

as a relevant indicator, rather than binding in the formal sense.140 In the case of Jurisic

itself, in the leading judgment by Chief Justice Spigelman, mention is made and reliance

put upon the previous practice of the Court of stating principles of general application in

relation to particular offences, the statements having in part the characteristics of a

guideline judgment.141 Under this reasoning, guideline judgments are argued to be a

logical extension of previous practice.142

The New South Wales Law Reform Commission recommended strongly against the use

of legislative guidelines such as those in s 9 of the Penalties and Sentences Act 1992

(1999) 48 NvSWLR 340. Note also that special leave to appeal to the High Court was granted in the case of Wong and Leung on 4 August 2000, and the case was heard in the High Court on 1-2 May 2001. Judgment has been reserved.[1999] NSWCCA 435.[2000] NSWCCA 294.R v Jurisic (1998) 45 NSWLR 209, 220 (Spigelman CJ).Ibid 221 (Spigelman CJ).Ibid 220-221 (Spigelman CJ). For a useful guide to the current approach of the NSW CCA to guideline judgments, see Hon Brian Sully, “Trends in Guideline Judgments” (2001) 20 Australian Bar Review 250.Jurisic (ibid) 217-220 (Spigelman CJ). Note however the comments by Wood CJ at CL in Jurisic that sometimes the principles in such cases can be overlooked in the volume of appellate cases handed down: Jurisic, 233.Ibid 217. See also Morgan and Murray, above n 33, 93.

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(Qld),143 and New South Wales has no such system. Interestingly then, it was New

South Wales that adopted the system of sentencing guidelines in appellate cases, on the

initiative of the judges in the Court of Criminal Appeal.

New South Wales Chief Justice Spigelman himself has pointed out that the system of

guideline judgments has emerged in the context of public debates about the introduction

of legislative schemes to confine the exercise of judicial discretion, namely minimum

sentences or sentencing grids.144 Part of the public debates to which he was referring

was the announcement by the New South Wales Opposition that they would implement

grid sentencing if elected in a forthcoming State election.145 The use of such sentencing

grids was rejected in Ju ris ic by Adams J, who stated that it could not be consistent with

prevailing notions of justice that facts measuring both seriousness of the offence and the

culpability of the offender have to be ignored, when this is the case with grid sentencing

and minimum sentencing schemes.146

The main reasons given for issuing guideline judgments, as expressed by the Chief

Justice in Ju ris ic , were summarised by Morgan and Murray to be threefold. First, that it

was a logical development building on previous practice; secondly that it was necessary

at times to re-evaluate previous sentencing practice, such as was the case in Jurisic

where the Parliament had increased the penalties for dangerous driving without a

consequent increase in sentences by the courts; and thirdly that such judgments were an

appropriate method of balancing consistency with the discretion required to

accommodate circumstances of individual cases.147

Compare the approach taken in Ju ris ic by the New South Wales Court of Criminal

Appeal with that taken by the Queensland Court of Appeal in the decision of

Sheppard, a case of dangerous driving causing death. The Attorney-General in that

See NSWLRC, Sentencing: Discussion Paper No 33, above n 56, 27; and NSWLRC, Sentencing (Report No 79), above n 56.Spigelman, “Sentencing Guideline Judgments”, above n 133, 876.See discussion in McWilliams, above n 132, 52.Jurisic (1998) 45 NSWLR 209, 254-255 (Adams J). See also Hon Justice Michael Adams, “Launch of UNSW Law Journal Forum” (1999) 22 UNSW Law Journal 257.Morgan and Murray, above n 33, 93-94.(1995) 77 A Grim R 137.148

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case argued for a general increase in penalties for that offence on the basis that the

maximum penalty had been increased by the legislature from five to 14 years over the

previous decade, while the sentences imposed by the courts had remained fairly

constant. It was conceded that the penalty was within the “range” for that offence,

despite the fact that many of the previous sentences were based imposed under a

significantly lower maximum penalty structure. The Court of Appeal declined to

increase the sentence (six years’ imprisonment with a recommendation for parole after

two years), on the basis that the court should not unfairly do so in an individual case.149

Finally, the Court of Appeal invited sentencing judges to consider further the maximum

penalty when handing down sentence.150

Although guideline judgments, at least in the sense understood by Ju ris ic , have never

been expressly used in Queensland, there have been judgments of the Queensland Court

of Appeal, and previously the Court of Criminal Appeal,151 which have from time to

time been seen as providing a strong message to the courts as to the appropriate

sentences to be imposed.152 In recent times however the Court has stated that it should

not necessarily be bound by the range of sentences indicated in these previous decisions,

particularly where sentencing trends have changed over time.153 The recent trend of the

Queensland Court of Appeal not to consider itself bound by these types of precedent

judgments illustrates a general trend against structuring discretion, particularly in the

manner demonstrated in New South Wales in Juris ic and subsequent judicial guideline

judgments.

See in particular Dowsett J at 146-147, Pincus JA at 142 in agreement.Sheppard (1995) 77 A Crim R 139, 148.Prior to the establishment of the Court of Appeal in Queensland in 1991, the appellate jurisdiction of the Supreme Court comprised the Full Court for civil matters, and the Court of Criminal Appeal for criminal matters.See eg, R v Joyce [1986] 1 Qd R 47 (housebreaking); R v Ryan and Vosmaer [1989] 1 Qd R 188 (armed robberies of financial institutions); Green [1986] 2 Qd R 406 (manslaughter in a domestic violence situation); and Sheppard (1995) 77 A Crim R 139 (dangerous driving causing death, see above).See for example, R v Holton (unreported Qld CA 10/12/96) where it was stated that Joyce was no longer of much assistance; R v Whiting [1995] 2 Qd R 199 where it was said that Green should no longer be followed as the range of sentences for domestic violence killing indicated in that case of five to six years’ imprisonment was no longer appropriate, and that such cases should not be treated differently from other cases of manslaughter. See also comments in two dangerous driving causing death cases, Sheppard (1995) 77 A Crim R 139 and Vessey (1996) 86 A Crim R 290, about the need to impose sentences appropriate to the circumstances of the particular case.

225

A comment by one of the judges in the present study makes the same point about

guideline judgments in Queensland, and the fact that they have not proved to be

effective precedents.

The Court of Appeal has given “guideline” judgments in the past but these have

not been followed in any systematic way by subsequent Courts of Appeal.154

A small number of judges in the present study commented on the use of guideline

judgments in New South Wales, with mixed reactions:

In New South Wales there is a lot of publicity about sentencing guidelines, but

in reality it was a reaction to the coming law and order debate in New South

Wales, and was a clever PR exercise. In truth, while what they are doing is

called guidelines, it is not really different from what the Court of Appeal in

Queensland is doing now.155

Guideline judgments may be helpful, but there is a risk with difficult cases.156

I don’t like sentencing guidelines like in New South Wales. They become out of

date as soon as they are pronounced. If you make rules, there is always an

exception. Judicial discretion allows you to take into account all of the

circumstances.157

Sentencing is very difficult, and that is why I am not in favour of the sort of

guidelines recently handed down by the New South Wales Court of [Criminal]

Appeal. I think having the sorts of schedules that can be placed before the

judges or the Appeal Court is more relevant, and then the Court of Appeal can,

in appropriate cases, make general observations. These can be for example, that

the offence is becoming more prevalent, and in consequence the balance of

154

155

156

157

Judge BB. See also comment by Judge EE, n 287. Judge M.Judge A.Judge Q.

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sentencing ought to be increased. See for example the judgments in the case of

Ryan and Vosmaer.158 159

These remarks do not demonstrate strong support for the New South Wales system of

guideline judgments, but this observation must be strongly qualified by the fact that the

interviews for this study were conducted not long after the judgment in Jurisic was

handed down. Although there was strong publicity about the case in the media,

including in Queensland, the judges may not have had an opportunity to read the

judgment, debate the issues or evaluate the effect of several such judgments over a

sustained period. Despite this, there has been little discussion in Queensland on the

concept of guideline judgments since 1998, and support by the judges for the concept

may not be any different, however this is a matter for conjecture. The Queensland

Court of Appeal has not subsequently followed the lead of New South Wales in issuing

guideline judgments, despite the opportunities for positive guidance that this would

bring to the lower courts, and other benefits which have been evident in New South

Wales.160

Western Australia has followed a similar course in declining to issue guideline

judgments, despite legislative provision to do so in that State.161 Neil Morgan and

Belinda Murray have noted the reasons for failure of the Court of Criminal Appeal to

take this course, despite a number of requests to do so, as having “ limited force” and not

standing up to rigorous scrutiny.162 Despite this, Morgan and Murray acknowledge that

the Western Australian Court has given a number of “guidance judgments” , and that

these are quite sophisticated in operation, and in terms of sentencing ranges more

detailed than Ju ris ic .164 In comments that could translate readily to the situation in

Queensland, Morgan and Murray contend that the failure of the Western Australian

Court of Criminal Appeal to “market” its sentencing practices more effectively, in the

[1989] 1 QdR 188.Judge DD.See eg, Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?”, above n 15, and discussion above.Sentencing Act 1995 (WA) s 143, and see Morgan and Murray, above n 33, 96-106.Ibid 105.As has the Queensland Court of Appeal, see discussion above.

227

manner of Ju ris ic , was a costly mistake.165 This was particularly so in Western

Australia due to the prospect of a sentencing matrix system which will, if the enabling

legislation is proclaimed, severely curtail judicial discretion.166

Why New South Wales has been the only Australian jurisdiction to enthusiastically

embrace judicial sentencing guidelines is a matter for conjecture, but the fairly negative

comments of some of the Queensland judges in the present study (although not claimed

to be necessarily representative of the views of judges in the State) tend to reflect a cool

response to guideline judgments, on the basis of the undue constriction of judicial

discretion. Morgan and Murray suggest that one of the factors behind the Western

Australian Court’s opposition to guideline judgments is a reflection of judicial culture

and perceptions of the nature of judicial decision-making, and further that the “judicial

synthesis” approach to sentencing decision-making does not readily accommodate

guideline judgments.167

Morgan and Murray conclude that the debate is ultimately a matter of balance between

retaining sufficient discretion in sentencing against unwarranted restrictions,168 however

as noted by Spigelman CJ in Juris ic :; “Guideline judgments are a mechanism for

structuring discretion, rather than restricting discretion” .169

In conclusion then, the judges in this study who commented on guideline judgments did

not actively oppose them; however they did not necessary support them either. They

were supportive of the idea of judgments which had previously been used in

Queensland to give guidance, but critical of the failure to apply them consistently.

164

165

166

167

168

169

Morgan and Murray, above n 33, 99.Ibid 106.Ibid; and Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?”, above n 33. The enabling legislation creating the sentencing matrix proposal was the Sentencing Legislation Amendment and Repeal Bill 1998, parts of which became the Sentencing Matrix Bill 1999, which in turn became the Sentencing Amendment Bill 2000. This Bill was enacted, and assented to on 6 December 2000 (Act no 64 of 2000). The Act has not been proclaimed.Morgan and Murray, above n 33, 106.Ibid.Jurisic (1998) 45 NSWLR 209, 221 (Spigelman CJ).

228

There were also hints that guideline judgments may not be entirely welcome if they had

the effect of restricting judicial discretion.

4.3 Mandatory sentences

As noted above, the Northern Territory introduced mandatory minimum sentences in

1997 for adult property offences, with a minimum sentence of not less than fourteen

days for the first offence, ninety days for the second, and twelve months for the third;

irrespective of the circumstances of the offence or the offender.170 Mandatory sentences1 n i

were later extended to offences other than property; namely violent offences, and

sexual offences. Western Australia introduced mandatory sentencing laws for a third

offence on particular charges for both adult and juvenile offenders in 1992.173

The non-discrimination in relation to seriousness of the offence of the Northern

Territory’ s mandatory minimum sentencing laws for property offenders has meant that

adult offenders must serve an actual jail term even for a first, trivial offence.174 For

second and third offences, the escalating jail terms do not differentiate between the

seriousness of the offence; illustrated by a case in February 2000 where a 21 year old

See sections 78A and 78B Sentencing Act 1995 (NT), and Zdenkowski, “Mandatory Imprisonment of Property Offenders in the Northern Territory”, above n 20.Section 78BA Sentencing Act 1995 (NT): offender must serve period of actual or suspended imprisonment if previously found guilty of a violent offence.Section 78BB Sentencing Act 1995 (NT): offender must serve period of actual or suspended imprisonment if convicted of a first sexual offence.See Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA). See now s 401(4) Criminal Code 1913 (WA), which provides for a mandatory minimum penalty of 12 months’ imprisonment if the person is a repeat offender. See also Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories”, above n 16; Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?”, above n 173; and Roderic Broadhurst and Nini Loh, “The Phantom of Deterrence: The Crime (Serious and Repeat Offenders) Sentencing Act” (1993) 26 The Australian and New Zealand Journal of Criminology 251. There is also mandatory imprisonment for juveniles for home burglary in WA, which tends to be overlooked in the mandatory sentencing debate, see Criminal Code (WA) s 401 and Young Offenders Act 1994 (WA). The effect of this legislation is discussed in Helen Bayes, “Punishment is Blind: Mandatory Sentencing of Children in Western Australia and the Northern Territory” (1999) 22 UNSW Law Journal 286.Section 78A(1) Sentencing Act 1995 (NT): an offender found guilty of one or more property offences must have a conviction recorded and serve a term of imprisonment of not less than 14 days.

229

Australian Aboriginal man was sentenced to 12 months in prison for stealing $23 worth

of biscuits and cordial.175

Although claimed to be electorally popular,176 the mandatory sentencing laws have

attracted considerable criticism from the judiciary,177 the legal profession,178

politicians, church and community groups and commentators. It has also been

argued that the laws may be vulnerable to constitutional attack.182 One of the central

Mike Seccombe, “Biscuit Thief Jailed as MPs Quibble”, Sydney Morning Herald, Sydney, 17 February 2000.Northern Territory Government, What it is All About, Northern Territory Government, Darwin, June 2000, 2. The NT Government also claims, based on nation-wide public opinion polls, that 58.7% of Australians (outside the Northern Territory) agree with mandatory sentencing, with 36.1% being against: Hon Denis Burke, “Australians Support NT Laws - Newspoll”, Media Release from Office of the Chief Minister, NT, Darwin, 8 March 2000.Johnson and Zdenkowski, above n 16, chapter 6; Margo Kingston, “Judges Lash Howard’s ‘Clever Politics’“, Sydney Morning Herald, Sydney, 17 March 2000Johnson and Zdenkowski, above n 16, chapter 4; Sheldon and Go wans, above n 21; Gordon Hughes, The Mandatory Sentencing Debate, Position Paper Update, Law Council of Australia, Canberra, August 2000.The public opposition to the laws by various politicians is detailed in Johnson and Zdenkowski, above n 16, chapter 4. This includes the Northern Territory’s Opposition party, the Australian Labor Party: Johnson and Zdenkowski, 48-51. See also discussion of the Private Senator’s Bill above n 19.Detailed in Johnson and Zdenkowski, above n 16, chapter 4.Zdenkowski, “Mandatory Imprisonment of Property Offenders in the Northern Territory”, above n 20; Susanna Lobez; Interview with Professor Arie Freiberg, “Mandatory Sentencing: A Wider Perspective”, The Law Report, ABC Radio National, Sydney, 18 April 2000 (Transcript available at: http://www.abc.net.aU/rn/talks/8.30/lawrpt/stories/sll9546.htm); Liz Jackson, “Go to Jail”, Four Corners, Sydney, ABC TV, 3 April 2000 (Transcript available at http://abc.net.au/4corners/stories/sll5654.htm); David Gibson, “Mandatory Madness: The True Story of the Northern Territory’s Mandatory Sentencing Laws” (2000) 25 Alternative Law Journal 103; Russell Goldflam and Jonathon Hunyor, “Mandatory Sentencing and the Concentration of Powers” (1999) 24 Alternative Law Journal 211; Campbell Thomson, “Preventing Crime or ‘Warehousing’ the Underprivileged? Mandatory Sentencing in the Northern Territory” (1999/2000) 4(26) Indigenous Law Bulletin 4; Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories”, above n 16; Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?”, above n 173; Brown, ei al, Criminal Laws, above n 13, 1408-1414; David Brown, “Mandatory Sentencing: A Criminological Perspective”, UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000. Cf defence of the laws in two presentations to a UNSW Symposium in 2000, Brendan Nelson, Address on Government Perspectives to UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000 (Dr Brendan Nelson is a federal MP and member of the Howard Government); and Hon Peter Foss, Address on Government Perspectives to UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000 (Hon Peter Foss QC MLC was Attorney General for Western Australia).G F K Santow, “Mandatory Sentencing: A Matter for the High Court” (2000) 74 Australian Law Journal 298; G F K Santow, “The High Court and Mandatory Sentencing”, Sydney Morning Herald, Sydney, 28 March 2000; Martin Flynn, “Fixing a Sentence: Are There any

230

criticisms of the laws of the Northern Territory has been the unduly harsh effect on

Indigenous Australians, who make up a disproportionate percentage of the prison

population in that jurisdiction.183 Other reasons include lack of proportionality to the

offence,184 lack of sound policy and theoretical justification,185 a failure to show any

crime reduction effect,186 and the cost of incarceration of offenders under the

schemes.187 Added to this are the consequences for the administration of justice, with

fewer guilty pleas and increased pressure on the courts and associated bodies such as

prosecutorial authorities and legal aid organisations; and a possible effect on juries

Constitutional Limits” (1999) 22 UNSW Law Journal 280; Johnson and Zdenkowski, above n 16, 53-54; Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?”, above n 173, 180-182. One case has already been taken to the High Court on the basis that the mandatory sentencing law was unconstitutional, but special leave to appeal was refused: Wynbyne v Marshall (1997) 117 NTR 11. The High Court has also rejected these arguments in two previous cases involving mandatory sentences, Palling v Corfield (1970) 123 CLR 52, and Sillery v The Queen (1981) 180 CLR 353.See Commonwealth, Parliamentary Debates, Second Reading Speech, Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, Senate, 25 August 1999 (Senator Brown, Tasmania); Sheldon and Gowans, above n 21; Johnson and Zdenkowski, above n 16, 83- 90; Brown, et al, Criminal Laws, above n 13, at 12.3.7; Chris Howse, “Covering a Multitude of Sins: How can the NT Office of Aboriginal Development have Concluded that Mandatory Sentencing has Little or Nothing to do with Rising Aboriginal Imprisonment Rates?” (1999) 24 Alternative Law Journal 224; Chris Howse, “Towards a Dealing Just and Kind: Reflections on Gaoling Homeless People and Mandatory Sentencing” (2000) 25 Alternative Law Journal 108; Rodney Allen, “Literature and the Judicial Role: Why Judges Should Read Novels and Mandatory Sentencing Should be Rejected” (2000) 25 Alternative Law Journal 157; Brown, above n 181, 71-73; Marcia Langton, Address to UNSW Symposium 2000 Mandatory Sentencing: Rights and Wrongs, Sydney, 28 October 2000; William Tilmouth, Address to UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000. This has also been a criticism of the WA mandatory sentencing laws: Eric Wynne, ATSI Perspectives, UNSW 2000 Symposium Mandatory Sentencing: Rights and Wrongs, Sydney, 28 October 2000, and see also note on Aboriginal imprisonment rates in Neil Morgan, “Business as Usual or a ‘New Utopia’? Non-Custodial Sentences Under Western Australia’s New Sentencing Laws”(1996) 26 Western Australian Law Review 364, 364-365.Johnson and Zdenkowski, above n 16, 9. Proportionality is a fundamental principle of sentencing, endorsed by statements of the High Court in Veen v The Queen (No 1) (1979) 143 CLR 458 and Veen v The Queen (No 2) (1988) 164 CLR 465. See also discussion of this principle in chapter 1 at 5.4.Johnson and Zdenkowski, above n 16, 9. Johnson and Zdenkowski note that deterrence was originally cited as a justification, but appeared to later have been abandoned in favour of retributive reasons. See also Brown, above n 181, 70-71; Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?”, above n 173, 170-171. See also the analysis of justifications in Declan Roche, Mandatory Sentencing - Trends and Issues in Criminal Justice, Australian Institute of Criminology, Canberra, 1999; and Sheldon and Gowans, above n 21.Sheldon and Gowans, above n 21; Brown, above n 181, 67-69.Sheldon and Gowans, above n 21. The cost of imprisonment of an offender in the Northern Territory has been estimated (based on government figures) to be $62 000 per annum: see Johnson and Zdenkowski, above n 16, 81.McMurdo, above n 25.

231

and the reporting of crime, if the harsh and unconscionable effects of the law are known

in advance and affect decision-making. Like the experience in the United States with

sentencing guidelines and grids,190 the mandatory sentencing schemes have not

necessarily eliminated discretion and inconsistency, but have transferred the discretion

to prosecutors and other parts of the criminal justice system.191 Harsh mandatory

sentencing schemes have been introduced in a number of United States jurisdictions,

attracting similar criticisms.192

One of the main objections to the mandatory sentencing schemes in both the Northern

Territory and Western Australia is the removal of discretion from the courts, and

consequent harsh and unjust operation of the laws.193 This was also the basis of the

criticism of these schemes by the judges who took part in this study. Of the judges who

discussed mandatory sentencing, there was clear opposition to such regimes.

See 4.4 below. There has been a disturbing trend in Australia to copy the US moves away from judicial discretion: “Coca-colonising Australian criminal justice”; see Zdenkowski, “Sentencing Trends: Past, Present and Prospective”, above n 15, 179, quoting Arie Freiberg, “Three Strikes and You’re Out - It's not Cricket: Colonisation and Resistance in Australian Sentencing” in Sentencing Policy in Comparative International Perspective: Recent Changes within and across National Boundaries, University of Minnesota Law School, May 1-3, 1998, 41.See Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?”, above n 173, 177-178; Hogg, above n 16, 3.Michael Tonry, “Mandatory Penalties” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 16, The University of Chicago Press, Chicago, 1992; Brown, above n 181, 59-66. See also Susanna Lobez; Interview with Professor Arie Freiberg, “Mandatory Sentencing: A Wider Perspective”, The Law Report, ABC Radio National, Sydney, 18 April 2000 (Transcript available at: http://www.abc.net.aU/rn/talks/8.30/lawrpt/stories/sll9546.htm); Michael Vitiello, “Three Strikes: Can We Return to Rationality?” (1997) 87 Journal of Criminal Law and Criminology 395; Lois Forer, A Rage to Punish: The Unintended Consequences of Mandatory Sentencing, W W Norton and Company, New York, 1994; and on the harsh consequences of the combination of mandatory sentencing with sentencing guidelines, see Gary Lowenthal, “Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform” (1993) 81 California Law Review 61. See also comments on the effects of mandatory sentencing generally from an international perspective in Dato Param Cumaraswamy, Keynote Address to the UNSW Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000.Commonwealth, Parliamentary Debates, Second Reading Speech, Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, Senate, 25 August 1999 (Senator Brown, Tasmania); Gordon Hughes, The Mandatory Sentencing Debate, Position Paper Update, Law Council of Australia, Canberra, August 2000; Sheldon and Gowans, above n 21; Santow, “Mandatory Sentencing: A Matter for the High Court”, above n 182, 300.

232

There are presently really only two specific curbs on judicial discretion. The

first is the concept of mandatory sentences such as those seen in the Northern

Territory; and the serious violent offender legislation in Queensland.194

I am strongly against any attempts by the legislature to introduce mandatory

sentencing.195

I don’t favour mandatory sentences or mandatory minimums.196

Judicial discretion plays a large role. An example of why mandatory sentencing

doesn’t work was some years ago when a compulsory six month term of

imprisonment was imposed for driving whilst disqualified. The Governor had to

issue many pardons because of the inappropriateness of the sentence in many

cases. Judicial discretion is a very important thing.197 *

Not having judicial discretion in sentencing leads to harsh results. It doesn’t

allow any real scope for any proper assessment of the quality of the conduct

concerned. You can never predict, look into the future, and assess the types of

circumstances which might arise. For example, the recent mandatory sentencing198laws in the Northern Territory have already resulted in unjust results.

Queensland in fact has some mandatory sentencing provisions, the major one of which

is mandatory life sentences for the offence of murder,199 with one judge expressing

views disagreeing with the sentencing restrictions that this provides.

194

195

196

197

198

199

Judge E.Judge F.Judge N.Judge Q.Judge W.The offence of murder is created by s 302 Criminal Code (Qld), and is punishable under s 305 by mandatory life imprisonment, or an indefinite sentence under Part 10 of the Penalties and Sentences Act. The offence of wilful murder (now abolished), attracted the death penalty. Note also that mandatory life sentences for murder (in limited circumstances) were introduced in NSW in 1996. See Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW). However the precise terms of the legislation actually preserve judicial discretion as pointed out by the NSW Director of Public Prosecutions: see Nicholas Cowdery, “Mandatory Life Sentences in New South Wales” (1999) 22 UNSW Law Journal 290.

233

I am against mandatory life sentences, and mandatory life for murder is

ridiculous. It downgrades the role of the judge. Parliament by restricting

discretion is saying we don’t trust you. Judicial discretion is paramount,

particularly in the sentencing process, provided judges act with courage.200 *

Although only six judges in the present study commented on mandatory minimum

sentencing, all were against the concept, with four citing restrictions on judicial

discretion as the reason. One of the judges noted the harsh results which follow, such as

has been the case in the Northern Territory, if individual circumstances of the offence or

the offender cannot be taken into account. Lack of trust in the judiciary was notably

mentioned by one judge. Although a judicial study specifically examining the issue of

mandatory sentences would no doubt yield more accurate and representative views on

this topic, the comments in this study suggest that Queensland judges would be strongly

against any wider utilisation of mandatory sentencing in the State.202 *

4.4 Sentencing grids

The Queensland system of wide sentencing discretion under the Penalties and

Sentences Act 1992 (Qld) is directly antithetical to the recent United States experience

in some jurisdictions of sentencing commissions, guidelines and grids. The history

and origin of United States sentencing guidelines have already been described,20470Showever it is relevant to examine how these systems works.

200201

202

203

204

205

Judge Y.This is perhaps not surprising, as the judges were not specifically asked their opinions about mandatory sentencing, and both the WA and NT schemes did not extensive attract Australia­wide publicity until late 1999, and early 2000.At least beyond what is already the case, eg, mandatory life imprisonment for murder: s 305 Criminal Code (Qld).See earlier discussion of sentencing guidelines in the US context, at 1.1, above.See discussion at 1.1 above.For a comprehensive discussion of developments in the US, see Tonry, Sentencing Matters, above n 7.

234

Sentencing guidelines in the United States are normally set out in a two dimensional

grid.206 Although the details differ between jurisdictions,207 grids typically have one

axis representing the seriousness of the offence,208 and the other the previous

convictions of the offender.209 According to Tonry, the two dimensional grid “produces

unjust results and conduces to needlessly harsh sentences” because of both the over­

emphasis on severity,210 and the psychology of sentencing grids themselves, which he

says are “blunt instruments when applied to sentencing operations for which scalpels are

often needed” .211 Thus, Tonry argues there is a reification of thinking about punishment

which emphasises criminality212 instead of a holistic approach.213

Benefits claimed for the use of sentencing guidelines are commonly based on reductions

in disparity.214 According to Anthony Doob,215 the goals of the United States

Sentencing Commission are to create honesty in sentencing, and uniformity and

proportionality; the last mentioned term apparently referring to escalation in severity,

rather than the normal meaning.216 Despite their claimed advantages in the reduction of

disparity, there are still many critics of the system, for example this statement by

Professor Albert Alschuler:

206

207

208

209

210 211 212

213

214

215

Ibid 14. This is not always the case however, as noted above.See analysis of different jurisdictions in Tonry (ibid), chapter 2; von Hirsch, “Proportionality and Parsimony in American Sentencing Guidelines: The Minnesota and Oregon Standards”, above n44.The US federal guidelines use not only a system of “charge offence” sentencing, but also “real offence” sentencing, meaning taking into account the actual conduct of the offender, regardless of the actual charges: United States Sentencing Commission, Guidelines Manual, United States Sentencing Commission, Washington DC, November 1998, 5. See criticism of this approach in Tonry, Sentencing Matters, above n 7,77-78.Tonry (ibid), 14 -15.Ibid 15.Ibid 20.See also the arguments in Albert Alschuler, “The Failure of Sentencing Commissions” (1991) 141 New Law Journal 829 which states that the focus has been (wrongly) on harms, not people.Tonry, Sentencing Matters, above n 7, 20. Tonry notes the possibility of disparity and bias with indeterminate sentencing, but notes that the system allowed judges to take account of the crime and all of the relevant circumstances.Ibid 40. But see Joel Waldfogel, “Does Inter-judge Disparity Justify Empirically Based Sentencing Guidelines?” (1998) 18 International Review of Law and Economics 293 where it is argued that such reduction does not offset the associated loss in proportionality.Doob in Clarkson and Morgan, above n 42, 204.

235

In evaluating sentencing commissions, one must ask, “compared to what” ?

Sentencing by a commission may be preferable to sentencing by a legislature,

but neither is preferable to individualised sentencing. The sentencing reforms of

the past dozen years have pointed in some useful directions; but in their current

form, they are bankrupt. Some things are worse than sentencing disparity, and217we have found them.

The operation of the United States federal guidelines in particular have been subject to

detailed scrutiny.218 Much of the comment on the federal guidelines has been critical.219

Tonry has summarised the criticisms into a number of grounds, which are: policy

(undue narrowing of judicial discretion and the shift of discretion to prosecutors);220

Doob points out that the US Guidelines have had their desired impact on severity, and that there has been a dramatic increase in the imprisonment rate: Ibid 238.Alschuler, above n 212, 829.Tonry, Sentencing Matters, above n 7, chapter 3; Doob in Clarkson and Morgan, above n 42; Charles Ogletree, “The Death of Discretion? Reflections on the Federal Sentencing Guidelines”(1988) 101 Harvard Law Review 1938; Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled Guidance?” (1989) 27 American Criminal I m w Review 367; Donald Lay, “Rethinking the Guidelines: A Call for Cooperation” (1992) 101 Yale Law Journal 1755 (Judge Lay was Chief Judge of the US Court of Appeals for the Eighth Circuit, and at the time of writing the article was a US Senior Circuit Court Judge); Cynthia Lee, “A New “Sliding Scale of Deference” Approach to Abuse of Discretion: Appellate Review of District Court Departures under the Federal Sentencing Guidelines” (1997) 35(1) American Criminal Law Review 1; Paul Robinson, “The Federal Sentencing Guidelines: Ten Years Later: An Introduction and Comments” (1997) 91 Northwestern University Law Review 1231; Thomas Whiteside, “The Federal Sentencing Guidelines: Ten Years Later: The Reality of Federal Sentencing: Beyond the Criticism” (1997) 91 Northwestern University Law Review 1574; Jeffrey Standen, “An Economic Perspective of Federal Criminal Law Reform” (1998) 2 Buffalo Criminal Law Review 249; Ilene Nagel and Stephen Schulhofer, “A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices Under the Federal Sentencing Guidelines” (1992) 66 University of Southern California 501; Dale Parent, “What Did the United States Sentencing Commission Miss?” (1992) 101 Yale Law Journal 1773. (Dale Parent was the first Director of the Minnesota Sentencing Guidelines Commission, the first sentencing commission in the US.)Cf however commentators who have acknowledged the need for further refinement of the guidelines, but have supported their general tenor: see eg, Justice Stephen Breyer, “Federal Sentencing Guidelines Revisited” (1999) 14 Criminal Justice 28.It can also be argued that the discretion has been largely shifted to the sentencing commission: Paul Robinson, “The Federal Sentencing Guidelines: Ten Years Later: An Introduction and Comments” (1997) 91 Northwestern University Law Review 1231, 1232. For an analysis of the use of discretion under the guidelines, see John Walker, “Loosening the Administrative Handcuffs: Discretion and Responsibility Under the Guidelines” (1993) 59 Brooklyn Law Review 551 (the author is a United States Circuit Judge for the Second Circuit); also Ian Weinstein, “The Discontinuous Tradition of Sentencing Discretion: Koon’s Failure to Recognise the Reshaping of Judicial Discretion Under the Guidelines” (1999) 79 Boston University Law Review 493; Michael Gelacak, Ilene Nagel and Barry Johnson, “Departures Under the Federal Sentencing Guidelines: An Empirical and Jurisprudential Analysis” (1996) 81 Minnesota Law Review 299; Ilene Nagel, “Structuring Sentencing Discretion: The New Federal Sentencing Guidelines” 80 Journal of Criminal Law and Criminology 883 (Ilene Nagel is a Commissioner

236

process (they are being circumvented by prosecutors and judges);221 ethics (forcing key

decisions behind closed doors and fostering hypocrisy); technocratic grounds (too

complex and hard to apply accurately); fairness (because only the offence or offence

behaviour and criminal record is taken into account,222 not other circumstances); on

outcome and normative grounds, for the reasons that they have not in fact reduced

sentencing disparity; and they are too harsh.

o f the United States Sentencing Commission). C f also the case with mandatory sentencing, where it has been argued that discretion has likewise been transferred to prosecutors, and other parts o f the criminal justice system: Morgan, “Mandatory Sentences in Australia: Where Have W e Been and Where Are We Going?” , above n 173, 177-178; Hogg, above n 16, 3.

See Chantale Lacasse and Abigail Payne, “Federal Sentencing Guidelines and Mandatory Minimum Sentences: Do Defendants Bargain in the Shadow of the Judge?” (1999) 42 Journal o f Law and Economics 245for an analysis o f plea bargaining under the federal sentencing guidelines, which concludes that defendants continue to “bargain in the shadow of the judge” and that the sentencing guidelines have failed to reduce (and has in fact increased) the amount of variation attributable to judge assignment to a case: at 247. See also Jennifer Reinganum, “Sentencing Guidelines, Judicial Discretion, and Plea Bargaining” (2000) 31(1) Rand Journal o f Economics 62.

As to the use of the criminal record in sentencing guideline systems, see Julian Roberts, “The Role o f the Criminal Record in the Sentencing Process” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 22, The University o f Chicago Press, Chicago, 1997.

For a discussion on disparity under the federal guidelines, see Paul Hofer, Kevin Blackwell and Barry Ruback, “The Effect of the Federal Sentencing Guidelines on Interjudge Sentencing Disparity” (1999) 90 Journal o f Criminal Law and Criminology 239, where it is stated that despite there being no consensus on whether the federal guidelines have reduced unwarranted disparity, the guidelines have had a modest but meaningful success at reducing disparity. There is also provision for judges to depart from the guidelines in certain extraordinary cases. In United States v Meza 111 F 3d 545 (7th Cir 1997) it was held, in a departure from previous practice, that judges can review and adjust the guidelines where there is unjustified disparity with co-offenders with virtually the same culpability. See note on this case: James McLaughlin, “Reducing Unjustified Sentencing Disparity” (1998) 107 Yale Law Journal 2345. For analysis generally on disparity under the federal guidelines, see Kathryn Walton, “The Federal Sentencing Guidelines: Miracle Cure for Sentencing Disparity (Caution: Apply Only as Directed)” (1991) 79 Kentucky Law Journal 385; Gerald Heaney, “The Reality of Sentencing Guidelines: No End to Disparity” (1991) 28 American Criminal Law Review 161; Paul Hofer, Kevin Blackwell and Barry Ruback, “The Effect of the Federal Sentencing Guidelines on Interjudge Sentencing Disparity” (1999) 90 Journal o f Criminal Law and Criminology 239; and James Anderson, Jeffrey Kling and Kate Stith, “Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines” (1999) 42 Journal o f Law and Economics 271; Kate Stith and Jose Cabranes, Fear o f Judging: Sentencing Guidelines in the Federal Courts, University of Chicago Press, Chicago, 1998;

Tonry, Sentencing Matters, above n 7, 72. It is interesting to note that an official from the US Sentencing Commission has said of Professor Tonry, “ it is obvious that Mr Tonry has little understanding o f the federal sentencing guidelines” : P Martin, “Response to Michael Tonry”(1989) 2 Federal Sentencing Reporter 158, cited in Doob in Clarkson and Morgan, above n 42, 201. In one o f the many favourable reviews o f Sentencing Matters, Professor Tonry is referred to as the “principal architect o f this field o f study, and its main contributor” , and Sentencing Matters “a compendium of the best work o f the leading scholar o f American sentencing innovations” : Kevin Reitz, “Michael Tonry and the Structure o f Sentencing Laws” (1996) 86 Journal o f Criminal Law and Criminology 1585. See also other reviews, Candace McCoy, “ Sentencing (and) the Underclass” (1997) 31(3) Law and Society Review 589 (“encyclopedic compendium o f sentencing theory...beautifully written...” ); Stanton Wheeler, “Review

237

Various US State guidelines have also been subject to examination, however the

assessment has not been as negative. Some studies have also suggested that the use

of guidelines can significantly increase the use of imprisonment as a sentencing9 9 7 9 9 0

option, thereby leading to problems of prison overcrowding."

It is useful also to note that an alternative to sentencing grids, non-numerical guidelines,

has been favoured in parts of Europe, for example, Sweden. This less restrictive

approach to sentencing regulation has been identified with a number of significant

advantages in the Swedish system, including detection of disparity, the development of229sentencing precendents by the courts and more explicit reasoning in court decisions.

225

Essay/Sentencing Matters” (1997) 16(2) Criminal Justice Ethics 46 (“ the book is richly informed, straightforward, and sensible...” ); Sheila Balkan, “ Sentencing Matters (book review)” (1996) 32(10) Trial 14 (“methodically researched and scholarly” ). There is little doubt that Professor Tonry is one o f the leading experts on the operation o f US sentencing guidelines.

See eg, von Hirsch, “Proportionality and Parsimony in American Sentencing Guidelines: The Minnesota and Oregon Standards” , above n 44; Frase, “Sentencing Guidelines in Minnesota and Other American States: A Progress Report” , above n 42; Andrew von Hirsch, “Sentencing Guidelines and Penal Aims in Minnesota” (1994) 13(1) Criminal Justice Ethics 39; Pamala Griset, “Criminal Sentencing in Florida: Determinate Sentencing’ s Hollow Shell” (1999) 45 Crime and Delinquency 316.

Von Hirsch, “Proportionality and Parsimony in American Sentencing Guidelines: The Minnesota and Oregon Standards” , above n 44, 164-167; Frase, “Sentencing Guidelines in Minnesota and Other American States: A Progress Report” , above n 42, 169; Frase, “The Uncertain Future o f Sentencing Guidelines” , above n 43; Kay Knapp, “Allocation o f Discretion and Accountability Within Sentencing Structures” (1993) 64 Colorado Law Review 679.

See Stewart D ’Alessio and Lisa Stolzenberg, “The Impact o f Sentencing Guidelines on Jail Incarceration in Minnesota” (1995) 33 Criminology 283, 197. But also see Carlisle Moody and Thomas Marvell, “The Uncertain Timing o f Innovations in Times Series: Minnesota Sentencing Guidelines and Jail Sentences - a Comment” (1996) 34 Criminology 257 which calls D ’Alessio and Stolzenberg’s claims of escalation “ spurious” .

This has been a complex issue. One study (funded by the National Institute of Justice, United States Department of Justice) of the relationship between sentencing guidelines and prison populations in nine US states concluded that in six states where there was legislation for guideline framers to consider prison capacity when establishing guidelines for prison lengths, guidelines were associated with declines in the prison populations: Thomas Marvell, “Sentencing Guidelines and Prison Population Growth” (1995) 85 Journal o f Criminal Law and Criminology 696.

Nils Jareborg, “The Swedish Sentencing Reform” in Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995, 122-123. See also further description and commentary on the Swedish reforms in Andrew von Hirsch and Nils Jareborg, “The Swedish Sentencing Law” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998; Andrew von Hirsch, “Principles for Choosing Sanctions: Sweden’s Proposed Sentencing Statute” (1987) 13 New England Journal on Criminal and Civil Confinement 171.

238

4.4.1 Opinions on sentencing grids

A number of judges who were interviewed in the present study were firmly against the

use of sentencing grids, based on perceived constraint of judicial sentencing discretion.

If you were to create a grid for sentencing as has been done in some other

jurisdictions, and remove that discretion it is debatable whether it provides a

better outcome. I don’t believe it does. The American experience in terms of230outcomes is not encouraging.

Rigid sentencing such as the Minnesota Guidelines in the United States puts far

too many restraints on the process. No two cases are the same and it is difficult

to apply blanket rules to a particular offence, there are always differences.231

In contrast with a process dictated by sentencing grids or similar systems, the judges in

the present study considered that the sentencing process could not be described in

mathematical terms.

Judicial discretion is very important. The alternative would be an Act which is

very specific, or something like entering data into a computer. Then there would

be no judges required.232

Sentencing is not a mechanical thing. The idea of using sentencing grids is too233inflexible. Sentencing is like putting the pieces into a jig saw in each case.

It is not a mathematical exercise. Very often a defendant may have a

particularly bad criminal history or there may be some psychological factor

2 3 0

2 31

2 3 2

2 3 3

Judge J.

Judge N.

Judge D.

Judge V.

239

which explains why the offence was committed. That is why the task is so234difficult as one has to do say eight to ten sentences on the one day.

One of the judges described the process as being quite the opposite of mathematical

precision:

The reality is that as a sentencing judge I have to go the middle ground.235Sentencing is the most imprecise process anyone can imagine.

The description of sentencing as “imprecise” raises also the question of disparity, if

such imprecision refers to an arbitrary system of sentencing. The use of the phrase

could also mean “imprecise” as the opposite of a determinate system where the

sentencing outcome was prescribed by mandatory sentencing, or a sentencing grid.

One judge stated that he or she employed the use of a sentencing pro-forma, not

necessarily for the purpose of turning sentencing into a mechanical exercise, but rather

to make sure that all relevant factors were taken into account.236 This system has

substantial benefits in maintaining consistency and fairness as much as possible. It did

not appear however that the concept of a sentencing pro-forma was one that was

embraced by many of the judges.

At the same time as this study was being conducted in Queensland, judges in Western

Australia were facing the prospect of the introduction of sentencing grids via the

Sentencing Legislation Amendment and Repeal Bill 1998 (W A ).237 In a similar move,

in June 1998 the New South Wales Coalition Opposition announced the introduction of

sentencing grids, based on the Minnesota model, as part of its policy platform for a

Judge L.

Judge S.

See further chapter 6 at 3.1.

See discussion o f this proposal in Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?” , above n 33. The sentencing matrix scheme was ultimately enacted in December 2000 via the Sentencing Amendment Act 2000 (W A), but has not been proclaimed. See further detail on the matrix proposal at 4.2 above.

240

forthcoming election.238 * In an examination of the matrix proposal, Morgan pointed out

that it was hard to avoid the conclusion that the W A proposals were based on law and

order politics, coming as they did after publicity about home invasions, and criticisms in

the media of the judiciary being out of touch and unaccountable. Morgan urged the

Court of Criminal Appeal in WA to think seriously about Ju ris ic style guideline

judgments, for which there is provision in WA sentencing legislation,240 before it is too

late.241 *

Although Queensland has not yet faced such threats to judicial discretion, it is not out of

the question that it will occur in future, and without warning. In Western Australia, the

proposals for sentencing grids or matrices came without prior consultation; neither the

judiciary, the Director of Public Prosecutions, defence counsel nor the Parole Board

were consulted. This is in marked contrast to the situation for example in Minnesota

where the Sentencing Guideline Commission was set up after a long period of

consultation and political debate, and the Commission itself was independent and well-

funded.243

The strong objections to the restrictions on judicial discretion brought about by both

mandatory sentencing and sentencing grids can be summed up by the following

comment which emphasises the perception that such restrictions produce unfair and

unjust results.

Sentencing discretion is absolutely vital, for the simple reason that personal

circumstances of the offender and circumstances of the offence differ in every

case. Contrast with that the grid system which is operated in other jurisdictions,

particularly the US, or mandatory sentencing systems, both of which are flawed

Zdenkowski, “ Sentencing Trends: Past, Present and Prospective” , above n 15, 178; see also McWilliams, above n 132.

Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?” , aboven 33, 263.

See s 142 Sentencing Act 1997 (WA).

Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?” , aboven 33, 290.

Ibid 270.242

241

because it gets forgotten that we will always come across the case where

mandatory sentencing will lead to a manifest injustice.244

4.5 Serious violent o ffences

As discussed in chapter 2,245 the P e n a lt ie s a n d S e n te n ces A c t 1992 (Qld) was amended

in 1997 by the P e n a lt ie s a n d S en tences (S e r io u s V io le n t O ffe n c e s ) A m e n d m e n t A c t 1997

(Qld). The amending Act introduced Part 9A and related provisions, principally s 156A

and ss 9(3) and (4); to impose restrictions on sentencing offenders convicted of offences

involving violence. Where the offender is convicted of a “serious violent offence” as

listed in the Schedule to the Act,246 the offender must serve 80% of their prison sentence

(or 15 years, whichever is the lesser), before being eligible to apply for release on

parole,247 and such an offender cannot have their sentence remitted.248 It is therefore the

case that if an offender is convicted of a serious violent offence under Part 9A, the

sentencer does not have the discretion to make a recommendation for early release on

parole.249

2 4 3

2 4 4

2 4 5

2 4 6

2 4 7

2 4 8

249

Ibid. See also von Hirsch, “Constructing Guidelines for Sentencing; The Critical Choices for the Minnesota Sentencing Guidelines Commission” , above n 43.

Judge H.

See at 3.4.

An offender is so convicted if he or she falls under s 161 A; ie, is convicted o f an offence in the Schedule and is sentenced to 10 years’ imprisonment (automatic: s 161 A(a)); is convicted of an offence in the Schedule, sentenced to 5-10 years’ imprisonment and declared to be convicted of a serious violent offence: s 161B(3); or the offender is convicted on an indictment o f an offence involving the use of serious violence or that resulted in serious harm, was sentenced to imprisonment and declared to be convicted of a serious violent offence. The last two are discretionary.

See s 166(l)(c) Corrective Services Act 1988 (Qld); a recommendation for earlier parole cannot be made in such a case, s 157(7) Penalties and Sentences Act 1992 (Qld). Normally in Queensland, an offender would be eligible to apply for parole after serving 50% of their sentence, unless they received a recommendation as part o f their sentence that they be eligible to apply for parole at an earlier time.

See s 161D. Under normal circumstances, remissions o f one third o f the sentence are available for good behaviour: s 21 Corrective Services Regulations 1988. Note also that parole and remissions are now the subject o f proposed overhaul, see Corrective Services Act 2000, which is due to come into effect in 2001.

See s 157(7)(a) Penalties and Sentences Act 1992 (Qld). Another restriction on sentencing such offenders is that in certain circumstances, for example if the offence was committed while serving a term of imprisonment, the second term must be served cumulatively on the first: s 156A Penalties and Sentences Act 1992 (Qld).

242

250While these provisions clearly have incapacitation of offenders as their primary goal,

they are also seen as limiting sentencing discretion, particularly in the case where an

offender is convicted of a Schedule offence and sentenced to over 10 years’

imprisonment. In this case, the provisions of Part 9A apply automatically, so that the

offender must be declared convicted of a serious violent offence.251

Some judges in the present study saw the serious violent offences provisions as a

constraint on their sentencing; two specifically mentioning it as a curb.

Current curbs on discretion include, for example, part 9A of the Act, which takes

away a judge’s power to recommend parole in many cases.252

One judge noted the effect of such restrictive sentencing provisions on the rehabilitation

of the offender.

Types of mandatory sentencing like the serious violent offender provisions in

the Penalties and Sentences Act can’t properly take into account the effect of a

young person’s possibility of rehabilitation.253

Since conducting this study in late 1998, Part 9A of the Penalties and Sentences Act has

been subject to considerable appellate discussion, as the implications of the scheme

became evident.254 For example, s 156A of the Act was also added in 1997 to provide

for compulsory cumulative sentences in certain circumstances for offenders who have

been convicted of offences listed in the schedule of serious violent offences. The effect

See discussion on incapacitation and protection in chapter 6 at 8.1, and Mark Brown, “Serious Violence and Dilemmas o f Sentencing: A Comparison o f Three Incapacitation Policies” [1998] Criminal Law Review 710. See also references on sentencing dangerous offenders in Brown, et al, Criminal Laws, above n 13, at 12.3.2.

See also McMurdo, above n 25, 2, where these provisions as limiting discretion. See also analysis o f judicial resistance to such legislative provisions dealing with dangerous offencers in Arie Freiberg, “Guerillas in our Midst?” in Mark Brown and John Pratt (eds), DangerousOffenders: Punishment and Social Order, Routledge, London, 2000.

Judge F. See also comment by judge E, already noted in the discussion on mandatory sentencing at 4.3 above.

Judge W.253

243

of this provision is that some offenders caught by this provision must serve extremely

long cumulative sentences, even though the effect of the total sentence is “crushing” ,255

and the outcome offends against the totality principle expounded in M ill v The Queen256 *

In recent cases however, the Court of Appeal has been of the view that it is permissible257when sentencing to take into account the harsh effect of a declaration under Part 9A.

5 The terminology of constraint258

The Crown Court study found a paradox where judges were endorsing the use of the

“intuitive” system of sentencing, yet felt constrained in making sentencing decisions.259

The researchers concluded that the words used by sentencers presented the sentence as

anything but the exercise of discretion, using words such as “the least possible sentence

I can pass” , and “I have no alternative but to. . .” .260 The researchers suggested that the

effect of this was that the offender and others may believe that the sentence was dictated

by law and not the choice of the judge; leading to the question posed in that study of

whether the terminology of constraint is a means of reconciling the offender and other

persons to the sentence, or whether the constraints were genuinely felt by the judges.261

2 5 4

2 5 5

2 5 6

2 5 7

2 5 8

2 5 9

2 6 0

261

See references cited in McMurdo, above n 25; and also cases discussed in Geraldine Mackenzie, Summary Offences, Law and Practice Queensland, Looseleaf, LBC Information Services, Sydney, 1995, paras 9.5697-9.5699/4.

Booth (1999) 105 A Crim R 288.

(1988) 166 CLR59.

These include R v Lund [2000] QCA 85, where the Court o f Appeal held that the discretion to declare an offender convicted of a serious violent offence under s 161B(3) should not be applied automatically in robbery cases o f the “corner store type” . The Court has also held that a sentencing court does not have to be “blind” to the effects o f a declaration under Part 9A, which will have the effect o f increasing the actual time spent in prison by the offender: R v Bojovic [2000] 2 Qd R 183, para 28 (judgment o f the Court). See also R v McCartney [1999] QCA 238, para 18 (Thomas JA and Derrington J) where it was held that sentences are not to be designed to avoid Part 9A ’s operation, however the sentencing judge “must not be blind to the consequences o f the sentence being imposed” and that it is proper to impose a lower sentence than would otherwise be the case, if a declaration is being made. McCartney was also referred to and followed in R v Staines [1999] QCA 311, see in particular Pincus JA, at para 11.

This phrase comes from the Crown Court study where the researchers found that judges believed that there were considerable constraints on their sentencing decision-making: Crown Court Study, above n 2, 53.

Ibid.

Ibid.

Ibid.

244

The researchers concluded that the constraint appeared to be felt by the judge using the

phrases.262

Constraint was a concept also employed by the judges in the present study. However it

should be noted that the judges were asked specific questions about constraints on their

sentencing. The response to this sometimes referred to general and legitimate

constraints on their decision-making.

Discretion cannot be exercised in a carte blanche manner, and must be exercised

in accordance with the purposes and principles of the law.263

There seems to be a general view in the community that judges can do whatever

they like, but judges must act according to law and are not free to do so. They

are governed by the Act, statements of the Court of Appeal, and other cases.264

These comments, together with others on restricting judicial discretion discussed

throughout this chapter, suggest that the judges in the present study had the same views

on constraint as did the judges in the Crown Court study. The same defensiveness on

the issue of maintaining a wide judicial discretion was also evident, as will be seen

below.

5.1 Sentencing legislation as a constraint

There has been a tendency over the years for judges to perceive the presence of

legislation as curtailing discretion, and generally making their job more complicated.265

A good example of this was the statement by the former Lord Chief Justice of England,

Lord Taylor, to the Annual Conference of the Law Society of Scotland: “You are

Judge H.

Judge N.

See eg, judicial descriptions o f the new federal sentencing provisions enacted in 1990 (primarilys 16A Crimes Act 1914 (Cth) detailed in Michael Rozenes, “Fundamental Flaws in Sentencing Law” (1992) Australian Law News 12.

245

fortunate in Scotland having comparatively little legislation in your criminal law.”266

Several of the judges in the study commented on this, both in relation to the Act as a

whole, and in relation to specific sections.

For some judges in this study, it was the P e n a lt ie s a n d S e n te n ces A c t itself which was a

constraint on their sentencing.

When the P e n a lt ie s a n d S en ten ces A c t first came out, concerns were expressed

by judges to the Attorney-General that detailed legislation such as that was

unnecessary. When you attempt to hedge in judicial discretion it is a recipe for

future difficulties.267

The P e n a lt ie s a n d S en tences A c t has led to more people being imprisoned, due

to lack of flexibility.268

I do feel that the P e n a lt ie s a n d S en ten ces A c t has at least partially taken away

judges’ discretion. The Act has however allowed us to keep people out of

prison.269

I think that the P e n a lt ie s a n d S en ten ces A c t curtails the judge’s sentencing

discretion.270

The importance of judicial discretion is that you can’t always imagine every

circumstance that might happen. There is always a case that you haven’ t

thought of. Judicial discretion has been whittled away by all of this legislation.

The only curbs on judicial discretion are that the Act is fairly prescriptive and

2 6 6

2 6 7

2 6 8

2 6 9

Taylor, above n 114.

Judge R.

Judge Q.

Judge U. The second sentence may reflect the fact that the Act introduced a greater range o fnon-custodial and community-based sentences.

Judge EE.270

24 6

some things in the Act limit your discretion. But sentencing really still is a9 7 1matter for judicial discretion.

Other judges were of the view that the P e n a lt ie s a n d S e n ten ces A c t did not put curbs on

their discretion.

272I don’t believe the P e n a lt ie s a n d S e n ten ces A c t constrains judicial discretion.

273Section 9(1) is not a curb on judicial discretion because it is fairly wide.

The P e n a lt ie s a n d Sen tences A c t does not put limits on discretion, but in fact

creates a whole new range of discretions such as the discretion in s 12 not to

record a conviction which was very restricted previously.274

In a different sense, I believe that there is a very wide discretion under the Act.

The difficulty with that is that if you sentence somebody, and for reasons best

known to themselves the Court of Appeal decides that the sentence is wrong;

they can pull out one of the provisions of the Act and say that there has been

insufficient emphasis put on that.275

Other comments were made in relation to specific sections which were causing

frustration. Section 147 (breach of suspended sentences) was particularly mentioned,

and has been the subject of criticism in a number of appellate cases.276

There are not many restrictions in the Act itself, although there are a few

limitations; for example, with intensive correction orders and suspended

2 71

2 7 2

2 7 3

2 7 4

2 7 5

2 7 6

Judge O.

Judge Y.

Judge A.

Judge H.

Judge AA.

See eg, R v Holley [1997] 2 Qd R 407; R v Holcroft [1997] 2 Qd R 392; R v Bowen [1997] 2 Qd R 379. Although s 147 had been amended just before the interviews for this study took place (see Penalties and Sentences (Serious Violent Offences) Amendment Act 1997), it was still

247

sentences and the total time of the order, and drafting problems with section 147.

It is frustrating that unless the person is in the last year of their suspended277sentence, the time can’t be extended.

In terms of curbs on judicial discretion, the main ones I can think of are the

inadequacies in the legislation, for example the construction of section 147

(suspended sentences). I would say that specific problems in the Act constrain

judicial discretion. I would like to have a freer ability to order different

combinations of sentences. I would like to be able to do such things as278combining probation orders and suspended sentences.

Some parts of the Penalties and Sentences Act have hedged in discretion; for

example, s 147 on suspended sentences has restricted the discretion available to

judges, although it has recently been amended.279

The comments made about the Penalties and Sentences Act 1992 (Qld) were therefore

mixed, with some judges believing that the Act and its provisions were the source of

constraint, and some not. The number of judges who held the perception that the Act

was a constraint was sufficient to suggest that this belief is reasonably widespread. This

accords with the view of the New South Wales Law Reform Commission who were

strongly of the view that New South Wales should not introduce consolidated

sentencing legislation incorporating common law principles.280 Reasons given for this

included the likelihood of stultifying the development of the law, including the

possibility of constraining judicial discretion; the fact that the purposes and principles of

sentencing were not seen as being in need of restatement or reform; the impossibility of

subject to uncertainty due to drafting ambiguities, some o f which had not been corrected. See commentary on this section in Mackenzie, above n 254, para 9.4920-9.4928.

Judge B.

Judge G. It was confirmed in R v Hughes [1999] 1 Qd R 389 that this combination indeed cannot be ordered under the Penalties and Sentences Act, thereby meaning that a person subject to a suspended sentence cannot also get the benefit o f supervision offered under a probation order (see s 93), when such supervision and guidance may be of considerable benefit, particularly to a young offender.

Judge R.279

248

providing an exhaustive list of factors relevant to each situation; and the perception that

reducing the common law to statute would serve no obvious purpose in terms of law

reform.281

There was still on the other hand, significant support from the judges for the expression

of sentencing principles in the Penalties and Sentences Act 1992 (Qld), and the view

that the Act itself does not constrain discretion. The way that the purposes and

principles in the Act are to be interpreted and applied is rarely prescribed, and it is not

unreasonable to suggest that there is little in the Act to restrict the exercise of

discretion.282 Some of these views could be said to be reflecting the general

defensiveness against encroachment, or perceived encroachment, on judicial discretion

that has been seen elsewhere in this analysis of their views on judicial discretion.

5.2 Range-based sentencing

Ironically, when it is considered that the judges in this study were strongly defensive of

a wide sentencing discretion, many judges spoke of sentencing “within the range” or

tariff; and either voluntarily did so, or felt compelled, normally by directives of the

Court of Appeal.

Although having a formal “range” of sentences, or sentencing tariff, is not part of the

sentencing regime under the Penalties and Sentences Act 1992 (Qld), using an

established range of sentences for guidance has long been part of the practice of the

courts in Queensland, and has not changed as a result of the implementation of the Act.

The Court of Appeal normally gives guidance in setting the range, however the range

NSWLRC, Sentencing: Discussion Paper No 33, above n 56, 27. Interestingly, the majority of the Commissioners at the NSWLRC involved in this reference were judicial officers.

Ibid 28-29. In 1999, the NSW Government introduced sentencing legislation, but in line with the views of the NSWLRC, it did not include purposes or lists o f factors to be taken into account in sentencing. See Crimes (Sentencing Procedure) Act 1999, and Crimes (Administration o f Sentences) Act 1999.

With the noted exception of provisions such as s 147, (as described above), and other sections which direct sentencers to act in a particular way. The application of s 9, which consists of purposes and guidelines, is left largely to judicial discretion, and has not been restricted by the legislature, except by the introduction o f new provisions in s 9(3) and (4) as part of the serious violent offences amendments in 1997. See further discussion on these amendments at 4.5 above.

249

tends to be informally set by sentences given by trial judges in the everyday practice of

sentencing, informed by previous sentences in similar cases. The way the system

operates is described below:

I listen to the facts placed before me by the prosecution and defence, consider

any exhibits and take note of comparable sentences. I also take into account

sentencing principles, for example, imprisonment as a last resort (s 9(2)(a)

Penalties & Sentences Act 1992 (“the Act” )), where it is applicable. (See ss 9(3)

and 9(4) of the Act.) My role as a sentencing judge is to impose an appropriate

sentence that is within the established range. If there is no established range, the

sentence will begin to establish that range.

Outcomes can vary significantly within a range; for example, a judge may order

18 months or two years before the person is eligible to apply for parole. There is

a range of sentences, outside of which will attract attention on an appeal. In

some cases however departure from the “range” is justifiable. An informal

range exists where if you could plot all of the variables, a sentence could fall'JQA

within an identifiable band or range.

I regard the tariff as crucially important in the process. I look at the offender

and the circumstances of the case, and the criminal history which is particularly

important if there have been no previous convictions for offences of the same

type. I would tend to disregard the criminal history if there have been no similar

previous offences. Of course on the other hand, the previous criminal history is

particularly important if it is a case involving violence and there is a history of

violence in the criminal history. I also look at comparable sentences and the

range. Pleas of guilty are also very important, and if the person is a youth, their

chances of rehabilitation. Essentially when I am sentencing I concentrate on the

offence, any special circumstances and the criminal history. I rely on the

Crown’s submission on the range or the tariff. Depending on how good the

defence counsel is, they will indicate where they see this case lies within the

283 Judge F.

250

range. I would use a recommendation for parole or a suspended sentence if

there were mitigating circumstances.285

And ironically:

I use the full range of sentences, as it’s all part of the battle to do something that

comes into the range.286

Not all judges interviewed however approved of range based sentencing. One judge

pointed out that where judges felt constrained to sentence within the “range” , they were

in fact curtailing their sentencing discretion:

The prosecution often produces schedules of comparative sentences and these

schedules are relied on to justify a certain “range” . But where offences have a

maximum penalty of life imprisonment, it has been said that you can’t have a

“range” with a lesser maximum. I agree with this. The schedules produced

nearly always use Court of Appeal decisions. We are being told that “the range

is say 4-6 years” for a particular offence, eg, armed robbery of a service station,

where the maximum penalty for that offence is life imprisonment and not six

years. In an old 1937 case, there was a violent robbery of an old and infirm

woman on the Gympie Mail train, and the sentence was 15 years’ jail. The

offender was a young man and the Court of Criminal Appeal didn’t interfere

with it. The Courts now appear to be much softer on youthful offenders. The

courts by their sentences have to offer protection to certain sections of the

community eg taxi drivers and service station operators, by giving an

appropriate penalty. In my view the range is 0-life if the maximum penalty is

life imprisonment and I sometimes find the schedule produced is really no help.

I don’ t always agree with the scale of tariffs or schedules presented to the court.

These have been apparently prepared by some person in the DPP. That is where

2 8 4

2 8 5

286

Judge V.

Judge D.

Judge B.

251

the range appears to be set. The Court of Appeal is properly concerned to have

consistency in sentencing for the same type of offence. Another decision which

set “the range” in housebreaking and burglary, Joyce, has been overturned. Mr

Justice Connolly in that case said that the time was right to set a tariff for2R7housebreaking.

Further by the same judge:

Another problem is that the maximum penalties prescribed by Drugs Misuse Act

are made to look ridiculous. Actual penalties for offences against that Act are in288very many cases way below these maxima and are non-custodial.

The legislative maximum is the way in which the Parliament indicates the seriousness

of the offence, as well as acting as a limit on judicial discretion, and serving as a

general deterrent to potential offenders.290 This gap between the “top of the range” ,

and the prescribed maximum penalties for the offence is common in many

jurisidictions,291 and is explicable in terms of the difference between the symbolic and

political component of setting maximum penalties, and the actual practice of sentencing.

It is a well established principle in Australia that the maximum penalty is reserved for

the worst category of that offence.292 The use of a normal range of sentences, or tariff,

is therefore a useful means of providing guidance to sentencers, in addition to giving the

benefit of consistency.

Two judges spoke of the importance of comparable or comparative sentences in

establishing the range. The use of such comparatives ensures, as one of the judges

pointed out, that like cases are treated alike. On the other hand, if the sentencing judge

feels constrained to sentence according to previous cases, it can be argued that he or she

2 8 7

2 8 8

2 8 9

2 9 0

2 9 1

Judge EE.

Judge EE.

See s 9(2)(b) Penalties and Sentences Act 1992 (Qld).

Fox and Freiberg, above n 35, 233-234.

Ibid 235-236.

Veen v The Queen (No 2) (1988) 164 CLR 465.292

252

loses the freedom to sentence as they see fit, which is one of the cornerstones of the

system operating in Queensland.

Comparable sentences will assist in determining what is the appropriate range

within which the sentence must be imposed.293

The Crown on a sentence presents a table of comparative sentences and judges

are to a certain extent obliged to sentence on the principle of like sentences for

like offences.294

The purposes in section 9 are used as significant yard sticks or parameters in the

system. They have features such as the need to signal the community’s

disapproval or conduct which society finds so repulsive that some punishment

must be given. How you do it and to what extent, is the most difficult area; but

in practice not all that difficult, because there is really so much sentencing based

on comparative cases, that by and large there is not all that much latitude/ 95

As there is a heavy reliance by judges on submissions by counsel296 which would

normally include submissions on tariff, judges in Queensland are in fact arguably

constrained most of all by range-based sentencing. In a number of cases the judges

stated that they felt compelled to sentence “within the range” , as perceived to be

sanctioned by the Court of Appeal, rather than the sentence which they felt was

appropriate in all of the circumstances. A failure to do so at first instance would

probably result in a successful appeal; costly and pointless when the other option was to

sentence within the range in the first place.

The following section looks specifically at the Court of Appeal and the influence which

many judges see that it has on their sentencing.

2 9 3

2 9 4

2 9 5

2 9 6

Judge F.

Judge U.

Judge W.

See discussion in chapter 4 at 8.6.

253

6 Appellate Review

6.1 Introduction

In Queensland, sentencing decisions in the District and Supreme Courts can be appealed

to the Court of Appeal.297 In the case of an Attorney-General’ s appeal, the appeal is as

of right, and the court has an unfettered discretion to vary the sentence. The leave of

the court must be obtained for a defence appeal against sentence from the District of

Supreme Courts to the Court of Appeal.299 The Court of Appeal can only intervene in

effect if the sentence is manifestly excessive or manifestly inadequate, and there is has

been an error in the exercise of discretion.300 On an appeal against sentence, the Court

of Appeal can quash the sentence and substitute another sentence if it is of the view thatT01another sentence is warranted in law and should have been passed.

A number of judges interviewed in the present study saw the existence of appellate

courts, specifically the Court of Appeal, as a curb on their discretion. Some of the

judges mentioned it in a matter of fact manner, but for others, it was an unwanted

interference with discretion.

I pay a lot of attention to judicial discretion and decisions by the Court of

Appeal. This is the curb on my sentencing, not s 9(1).' “ 303

303The only curbs on judicial discretion come from appellate decisions.

2 9 7

2 9 8

2 9 9

3 0 0

3 0 1

3 0 2

3 0 3

All defence appeals from sentences in the Magistrates Court are heard by the District Court: s 222 Justices Act 1886 (Qld). Further appeal to the Court o f Appeal is available under s 118(1 )(b) District Court Act 1967 (Qld). Under s 669A(l)(b ) Criminal Code, the Attorney- General may appeal to the Court of Appeal against a sentence for an indictable offence dealt with summarily in the Magistrates Court. See further Mackenzie, above n 254, para 1.10215.

Section 669A Criminal Code. The test to be applied is whether the sentence is outside the range o f a proper sentencing discretion: R v Melano [1995] 2 Qd R 186.

Section 668D Criminal Code. The court can only interfere if the judge has acted on a wrong principle o f law or has overlooked or misunderstood “some salient feature of the evidence” : see Skinner v R (1913) 16 CLR 336 and R v Buckmaster [1917] St R Qd 30.

House v The King (1936) 55 CLR 499; R v Skinner (1913) 16 CLR 336, 340.

Section 668E Criminal Code (Qld).

Judge A.

Judge B.

254

I think the only curbs on judicial discretion are the Court of Appeal and

Parliament.304 *

Comments by the Court of Appeal can have a devastating effect and be

discouraging. I would contrast this with civil judgments where I feel the Court

of Appeal is more careful in their comments. There is an insistence in the Court

of Appeal that judges stay within a narrow range of sentences.

The law is there to regulate conduct and settle disputes, and it is constrained by

the Court of Appeal and public opinion.306

As a sentencing judge the Court of Appeal binds you. In any Bench there are

hawks and doves, and if you have a number of doves on an appellate court the

chances of getting a reduction in sentence are considerably increased.

Although these comments came from both District Court and Supreme Court judges

(the latter of which sit on the Court of Appeal on a rotational basis), it was clear that a

number of judges of the District Court in particular held these views. For example,

We are also constrained by the prevailing culture, and the Court of Appeal.

...Politicians make the law and we interpret it. For a District Court judge, we

are highly influenced by the Court of Appeal and Parliament and have very little

room to move. ...The biggest thing which constrains judicial discretion is that

judges hate being caned in the Court of Appeal. Judges are saying little in their

sentencing remarks because they are scared of being commented on in the Court

of Appeal and have a fear of the media. I feel that the Court of Appeal is on the

odd occasion unnecessarily discourteous in their judgments towards the judges

who impose the initial sentences. I also feel that the current rules of appeal are

3 0 4

3 0 5

3 0 6

3 0 7

Judge C.

Judge E.

Judge T.

Judge EE,

255

not right and that everybody should be able to appeal; for example the

Attorney-General against an acquittal.308

This observation highlights the possible effects of critical comments on the sentencing

process, and suggests that there may be links between judicial reluctance to give reasons

for sentence, and criticism by an appellate court.309 The comment about “little room to

move” indicates perceived constraints by Court of Appeal decisions, and contrasts with

the legal and practical latitude that judges are supposed to have.310

Despite the fact that the judges in the study were asked only to nominate any constraints

on their sentencing discretion rather than to specifically comment on the Court of

Appeal, decisions by the appellate court were nominated by many as a constraint on

their sentencing. The existence of the appellate court however has an important role,

which is to correct any improper exercises of discretion by sentencing courts. As such,

is has an important role to play in regulating judicial discretion, which was noted by one

judge.

The right of appeal is an ultimate curb on judicial discretion. If a judge wrongly

exercises his or her discretion, on appeal that exercise of discretion can be

overturned.311

These judicial comments about the role of appellate review may be starkly contrasted

with the analysis of commentators who have pointed out the limitations of this process.

Indeed these very limitations were amongst the considerations which led to the

introduction of guidelines in the United States.312 It is therefore intriguing to observe

that some Queensland judges at least, consider appellate review to be an intrusion into

sentencing discretion.

3 0 8

3 0 9

3 1 0

311

3 1 2

Judge E.

See also discussion about giving reasons for sentence in chapter 4, at 8.7.

See also discussion on the “terminology o f constraint” , at part 5, above.

Judge J.

See generally, Tonry, Sentencing Matters, above n 7, chapter 1.

25 6

6.2 Perceptions on the role o f the Court o f Appeal

Leading on from the above discussion is the role of the Court of Appeal in sentencing.

The present Court of Appeal is a Division of the Supreme Court of Queensland, and

replaced both the Court of Criminal Appeal and Full Court in 1991. The Court of

Appeal is headed by a President, and assisted by four judges in appeal who are

permanently appointed to the court. Judges from the trial division of the Supreme Court

also sit on the Court of Appeal on a rotational basis; with two trial division judges

normally being assigned to the Court of Appeal during each sittings.313

A number of the 31 judges interviewed for this study made comments about the role of

the Court of Appeal, and many of these were critical. Much of the criticism came from

District Court judges, however comments also came from Supreme Court judges,314

vho themselves sit on the Court of Appeal. It should also be noted that the Court of

Appeal had undergone significant personnel changes, including a new President,

immediately before this study was undertaken. The criticism therefore did not

necessarily relate to the constitution of the Court at the time of the study, nor to

individual judges who sat on the Court; but appeared to be directed to the institution

itself and the appeals system.

Judges’ views on the operation of the Court of Appeal varied, however there was a

general view that the existence of the Court of Appeal promoted consistency and

provided necessary guidance.

Now there tend to be more sentencing remarks addressing relevant issues, there

is more thought about sentencing, and sentences are given in a systematic and

consistent way. This is also promoted by the impression now that the Court of

Appeal expects judges to sentence within a narrow range, and won’t tolerate a

Supreme Court o f Queensland Annual Report 1997-1998 Supreme Court o f Queensland, Brisbane, 1998, 16. See also further discussion of this in chapter 3.

Because o f the low numbers o f Supreme Court judges participating in this study (10 in all), it was not possible, for reasons o f identification, to differentiate responses between Trial Division and Court of Appeal judges. See chapter 3 for further details o f the judges’ participation in the study.

25 7

broad range. The judge may have their own ideas but the Court of Appeal won’t

let them depart too far. Since the establishment of the Court of Appeal there has

been a standardisation of sentencing in Queensland. One has to constantly look

to the Court of Appeal and see what sentences they are passing. There is a bigO I C

difference now between how cases are run.

The Court of Appeal exists as a control mechanism or a safeguard. It is an

important influential factor in the process. It is sometimes necessary to point out

to counsel who are urging for a particular course of action, that if I were to

accede to their requests I would be inviting an appeal by the Attorney-General.

One has to resist the temptation to do this so that one is still sentencing within

the range. It would be inappropriate to impose a sentence outside of the range,

and thereby expose the prisoner to a needless appeal, and the prosecution and

Legal Aid or the prisoner themselves to the cost of an appeal.316

Sometimes the view of the Court of Appeal is different from my view about a

particular case. I attempt to assimilate the Court of Appeal decision in future317sentences. I do not deliberately flout Court of Appeal decisions.

Of course, I am guided by statements of the Court of Appeal and by comparable31 Rsentences of other judges, but within perimeters.

Another judge pointed out that the Court of Appeal took care in sentencing appeals:

319There is a lot of effort in the Court of Appeal in sentencing matters.

Judge A.

Judge K.

Judge J.

Judge C.

Judge M.

258

6.3Criticisms o f the Court of Appeal

It was evident from the judicial responses in this study that a number of the judges were

critical of the way in which the Court of Appeal was operating. One of the grounds for

criticism was on the basis of lack of consistency:

There is a difficulty when there is inconsistency between differently constituted

Courts of Appeal. I was hopeful when the Court of Appeal was set up that it

would provide guidance and consistency, however this has not been

forthcoming.320

One of the main criticisms of the operation of the Court of Appeal was that they tended

to “tinker” with sentences, rather than interfere only when the sentence was manifestly

excessive or manifestly inadequate. There was less agreement however, as to

whether the guidance provided was always helpful.

The Court of Appeal have made it more difficult, as in the past they tended to

tinker rather than take a hard decision as to whether a sentence was manifestly

inadequate or manifestly excessive. It is difficult to know what the “tariff’ is; ie,

what is the range in the certain circumstances. It is the function of the Court of

Appeal to say this and in recent years, the Court of Appeal has made it very

difficult for sentencing judges to know the tariff, because of minor adjustments

to sentences.32̂

Judge A A.

See discussion on grounds of appeal above, at n 300.

It should be noted here that a number o f the comments in this section came from judges of the Supreme Court, all o f whom, if not appointed to the Court o f Appeal full-time, sit on the Court o f Appeal on a rotational basis.

Judge Y.3 2 3

259

An issue of concern is the trend that appellate courts have taken with interfering

on appeals with sentences, particularly appeals by the Attorney-General.

There have been practical differences over the past five years with the Court of

Appeal expressing opinions only in sentencing appeals such as “I think” . It is

easy for the Court of Appeal to overturn sentences and make small reductions

without principle.

It is also important that the Court of Appeal doesn’t merely tinker with the

sentence, ie, take off only a small amount if there was an appeal against the

severity of the sentence. The Court of Appeal should only intervene where

necessary, and according to proper sentencing principles. The checks and

balances in the system which the Court of Appeal provides are very

important.325

This criticism of appellate courts as tending to “tinker” with sentences is consistent with

comments made by judges in the Crown Court study in the United Kingdom.326 * One of

the criticisms was in relation to “the making of small reductions in terms of

imprisonment, thereby going against the view that sentencing is in the judge’s discretion

and the Court of Appeal only alters sentence which are ‘wrong in principle’ . ’ It was

also said that the “continuing stream of inconsistent decisions’'’ led some judges to be

“openly disrespectful towards the Court’ s jurisprudence” .328 The same could be said for

the present study. See, for example, this comment:

Sentencing causes us as judges the most problems and puts us in the Court of

Appeal the most often. The existence of the Court of Appeal means that we

don’t know where we stand. The Court of Appeal looks at the process from a

different point of view and can be less subjective. The Court of Appeal also has

Judge BB.

Judge K.

Crown Court Study, above n 2.

Ibid 47.

Ibid 48.

260

a positive role in providing consistency in the system. There are two different

duties in a sentencing court and an appeal court.

The Court of Appeal and the media were both said to have a big influence:330 *

33 1I feel that the media and the Court of Appeal are a big influence in sentencing.

6.4Acting defensively

A number of judges expressed the view that there was a need to either act defensively or

very carefully in order to avoid interference by the Court of Appeal.

If I am imposing a sentence which the Court of Appeal is going to see as too

low, I will give a lot of detail. This is important so that the Court of Appeal will

know why I gave that particular sentence.332

Always when sentencing you have to be careful that you don’t fall for a bleeding

heart story; and the other side is that you do get a bleeding heart story and have

to weigh that up with what the offence objectively deserves. It shouldn’t be a

major concern. If a sentence is too light it is going to end up before the Court of

Appeal anyway and that does nobody any good.333

I like to think I am imposing a sentence which I think is right, not the Court of

Appeal, but you have to be realistic. You are put in a conundrum as a judge if

the sentence you want to impose is a non-custodial sentence, but you know that

the Court of Appeal will interfere with it on a Crown Appeal. If you give a

person say three months, the Crown won’t appeal and the sentence will stand.

The ones that come to mind where I do this are cases usually involving middle-

329

3 3 0

3 31

3 3 2

3 3 3

Judge I.

See further on the role of the media in chapter 7.

Judge B.

Judge I.

Judge AA.

261

aged women who have defrauded their employer or have committed social

security fraud.334

One judge acknowledged the possibility that a concentration on the Court of Appeal’s

response would result in defensive behaviour.

I don’t go to a lot of trouble with Court of Appeal decisions as I would then be

becoming defensive.

Even though as the same judge said “ the existence of Court of Appeal means that we

don’t know where we stand” , appellate review is one of the cornerstones of the

present system in Queensland, and an important safeguard to the operation of judicial

discretion. Without the possibility of such review, there would be few constraints on

the sentencing discretion.

6.5 Consistency and appellate review

Inconsistency in decision-making of the Court of Appeal was of concern to several of

the judges interviewed. This was coupled with a perception that the Court of Appeal

does not appear to appropriately acknowledge that the sentencing court has the benefit

of hearing the full facts of the matter, including having the offender in front of them,

and is therefore in the best position to assess the appropriate sentence. See, for

example, the following comment:

The trial judge has a big advantage over the appellate court because he or she

sees the person in front of them. I think that sometimes our appellate system

fails to recognise that advantage.

3 3 4

3 3 5

3 3 6

3 3 7

Judge CC.

Judge I.

Judge I, see remainder o f comment above n 329.

Judge EE.

262

If the Court of Appeal acts as a safeguard to the process, there can be little argument

that its role in that process is an appropriate one. If however it steps beyond that role,

other considerations arise.

A number of the judges in the present study did consider that the Court of Appeal has

stepped beyond what was appropriate, one of the main criticisms being consistency.

You have to take into account, whether you like it or not, the decisions of the

Court of Appeal, which makes the task harder. In some cases the Court of

Appeal has given sentences, such as the case of H on indecent dealing,338 which

are intended to give some guidance. However within a month or two of having

said that such cases should be non-custodial only in exceptional circumstances,

the Court of Appeal had dismissed Attorney-General appeals where non­

custodial sentences had been given. It is hard to reconcile these decisions.339

Occasionally an applicant for leave to appeal against sentence will present to the

Court of Appeal an argument different from that presented to the sentencing

judge and will try to have the sentence at first instance set aside. Save in

exceptional cases I do not like that approach which is very much like having a

second bite at the cherry.340

6.6 Appellate review: a balance

The interviews with judges in this study unearthed some fairly strident criticism of the

Court of Appeal, but also a recognition of the importance of that court, and the need for

the Court to get it right in sentencing decisions. As with the Crown Court study, the

comments by the judges in the present study revealed some strong feelings on this issue,

as well as somewhat of a breakdown in communication between the various courts.

3 3 8

3 3 9

340

The case referred to by the judge is H (1993) 66 A Crim R 505.

Judge A A.

Judge EE.

263

On the one view, it is remarkable that a number of judicial officers appear to resent

appellate review when it is the very existence of this mechanism that legitimises the

system and allows them to claim that errors in sentencing will be corrected and that

there is no untrammelled discretion. In fairness, however most of the criticisms relate

not to the existence of appellate review but the manner in which it is exercised.

Despite some of the judges having the view that the Court of Appeal was

inappropriately interfering with their sentencing discretion at times; this has to be

balanced with the recognition of the importance of appellate review to the exercise of

judicial discretion. In sentencing systems such as the one in Queensland where

discretion is largely in the hands of the judges, stringent appeal processes are critical to

ensure the integrity of sentencing, and it is perhaps inevitable that this is a sensitive and

difficult issue when examined from the point of view of those judges whose sentencing

decisions have been subjected to criticism or have been overturned by the Court of

Appeal.

7 Sentencing options

One of the key discretionary decisions in sentencing is choice of sanction, the other is

quantum. Specific questions about sentencing options were not included in the

interviews for this study, but many judges spoke about sentencing options when

discussing the exercise of their discretion in sentencing, and their comments are

analysed here. Because only a limited number of judges expressed views on these

issues, the comments are not put forward as necessarily being representative of the

group of judges interviewed. They do however give a valuable insight into opinions

about sentencing options, and as such views are rarely available, they are worthy of note

and serve to inform further debate. They also reveal further insights into judicial

attitudes and perceptions of sentencing, and are therefore worthy of further examination

within the context of this study.

264

Discussion of these comments is broken up into two main topics; imprisonment and

community-based orders. This section concludes with a brief discussion of flexibility in

sentencing and creative sentencing options.

7.1 Range o f sentencing options

Sentencing options for offenders convicted of state offences in Queensland are listed in

the Penalties and Sentences Act 1992 (Qld). There is no specific listing of sentencing

hierarchies,341 but an intended order of seriousness can be inferred from the ranking in

the Act. Those options are as follows:

• Orders for absolute discharge and recognisances (where no conviction can be

recorded) - Part 3 Division 1

• Recognisances - Part 3 Divisions 2 and 3

• Fines - Part 4342

• Probation orders - Part 5 Division l 343

• Community service orders- Part 5 Division 2344 *

• Intensive Correction orders - Part 6j45

• Orders of suspended imprisonment - Part 8346

Arie Freiberg and Richard Fox, “Sentencing Structures and Sanction Hierarchies” (1986) 10 Criminal Law Journal 216; Richard Fox and Arie Freiberg, “Ranking Offence Seriousness in Reviewing Statutory Maximum Penalties” (1990) 23 The Australian and New Zealand Journal o f Criminology 165.

I f an offender is unable to pay a fine, they may apply for a fine option order under Part 4 Division 2 Penalties and Sentences Act 1992 (Qld). Flexibility in enforcement options will be better enhanced with the implementation of the State Penalties Enforcement Act 1999 (Qld) which came into effect on 27 November 2000.

Under a probation order the offender is released under the supervision o f a corrective services officer and is a community-based order. Probation can be ordered for a period o f between six months and three years; or combined with up to six months’ imprisonment for a period of between nine months and three years: s 92. The offender must comply with particular requirements for the period o f the order: ss 93 and 94.

Under a community service order the offender is required to perform unpaid community service for a specified number o f hours, not less than 40, and not more than 240: s 103. A community service order can be (and is frequently) ordered to be served concurrently with a probation order: s 109.

Under an intensive correction order the offender is ordered to serve a sentence of imprisonment by way o f intensive correction in the community: s 113. The offender must comply withspecified requirements: s 114.

265

• Imprisonment - Part 9

• Indefinite sentences - Part 10347

Although there is no set ranking of punishment sanctions in the Act, it is generally

assumed that non-custodial options are less severe, and thus more favourable than

custodial options. Despite this general belief, this may not necessarily be the view of

offenders.348

Two of the judges in the study spoke of being limited in their sentencing by the range of

sentencing options available.

We are constrained as judges by the range of punishment options, more so than

the prescribed maximums.349

350Sentencing alternatives that are available are somewhat rigid and hidebound.

The punishment options available under the Act are in fact wide-ranging, and more

flexible than was the case before the implementation of the Act. Suspended sentences

were reintroduced as a punishment option with the Penalties and Sentences Act 1992

3 4 6

3 4 7

3 4 8

3 4 9

3 5 0

The court may only order a suspended sentence if it sentences the offender to imprisonment for five years or less: s 144(1). Part or all o f the sentence may be suspended: s 144(3).

An indefinite sentence can only be ordered where the offender has been convicted of a violent offence and the court is satisfied that the offender is a serious danger to the community as defined the Act: see ss 162 and 163 and R v Wilson [1998] 2 Qd R 599, 668 (Pincus J). Despite the fact that very few indefinite sentences have been imposed since the introduction of the Act, there has been considerable controversy over this sentencing option, at least immediately after its introduction: see Peter Mals and Geoffrey Grantham, “Queensland Boards a Sinking Ship - New Dangerous Offenders Legislation” (1993) 18 Alternative Law Journal 17; Jim Parke and Brett Mason, “The Queen of Hearts in Queensland: A Critique of Part 10 o f the Penalties and Sentences Act 1992 (Qld)” (1995) 19 Criminal Law Journal 312.

See eg, Peter Wood and Harold Grasmick, “Toward the Development of Punishment Equivalencies: Male and Female Inmates Rate the Severity o f Alternative Sanctions Compared to Prison” (1999) 16 Justice Quarterly 19, which reported on a survey o f 415 offenders in the US, and found that prisoners do not necessarily rate non-custodial options as less punitive than imprisonment, and that the reality o f perceptions o f severity is more complex than had previously been assumed: at 45.

Judge E.

Judge J.

266

(Qld),351 and intensive correction orders introduced, thereby giving sentencers greater

options for more serious offences where a jail term was not warranted, but where

community service or probation would be too lenient.

As statements critical of punishment options were made by only a few judges, and these

statements themselves were often qualified, caution must be exercised when reading the

comments, as they may not reflect the views of the Queensland judiciary generally. In

addition, the comments do not necessarily reflect the reality of the situation, as will be

seen below. Some judges also spoke in favour of more flexible and creative options,

and these are discussed at the end of this section, below.

7.2 Imprisonment

It was evident from comments made by a number of judges that sending a person to

prison was one of the most difficult things that they had to do.352 This should not be

interpreted however as indicating that the judges were somehow inappropriately

sympathetic of offenders in favour of victims, which was not the case.353

In particular, there was considerable disquiet about the nature and effects of the prison

system. Comments made were as follows:

The worst thing about imprisonment is the door closing behind the person.354

Jails won’t do much for the person or society.353

Putting people into jail for offences which aren’t particularly reprehensible in

the eyes of the public should be avoided at all costs. Members of the public

Although theoretically still available before the 1992 Act, their availability had been severely curtailed and they had fallen into disuse.

See also discussion on the human face of judging in chapter 4 at part 6.

See discussion o f the role of victims in sentencing offenders in chapter 6 at part 9.

Judge CC.

Judge S.355

267

don’t understand what a dangerous and terrible place prison is, where a six

month jail sentence can be a death sentence.356 *

Jail doesn’t rehabilitate offenders. Judges don’t want to put people in jail unless

we have to. I have visited prisons in various capacities before becoming a judge,

and I know what the atmosphere is like. Sending somebody to prison is not

something I do lightly.

There really needs to be more thought put into corrective services, at the upper

end of the scale, to provide greater treatment, particularly of young men. It is

mainly men who are affected as women infrequently figure in the sentencing

courts, as their involvement in criminal offences is minimal. They tend to be

involved as an adjunct to males, for example in fencing goods for their

boyfriends or similar matters. It is with young men that the great problem lies.

A particular problem with young men is with alcohol and drugs, and there is a

particular problem with offences such as service station robberies.358

Jail was seen as being inappropriate for some offenders because of their circumstances:

Some sentences may be easy, for example a choice between community service

and probation, or perhaps whether to impose seven or nine years’ imprisonment.

Sometimes however the big issue and the difficult issue is whether or not you

send the person to prison at all. This is a terribly difficult decision, and depends

often on the personal circumstances of the offender. An important question is

whether the community is best served by imposing a term of imprisonment on

this person. If the person is for example a mother of small children, there are

certain considerations which must be taken into account.359

Judge W.

Judge T.

Judge R.

Judge K.

268

I see little point in sending dishonesty offenders to jail, but as a judge you have

to do this. Similarly with dangerous driving causing death, there is little point in

sending such offenders to prison.360

If I have before me say, a grievous bodily harm charge, these are the easy ones.

The harder ones are the borderline matters where I have to try hard to keep

people out of jail.361

What I do in court is based on experience and trying to keep people out of

prison.362

There were also reservations expressed about other consequences of sending someone

to prison, such as the possibility of homosexual rapes, or the availability of illicit drugs:

Other influences to me in sentencing (and almost every judge, I would think) is

the issue of homosexual rape in prisons. Such prisoners have a terrible time in

prison. The realities of prison life can be so awful that the nature of

imprisonment as a punishment is a real issue.363

For prisoners who are drug addicted, prison may not be the best option. A

significant portion of prisoners in prison have access to drugs whilst serving

their sentence. Sometimes I would question whether chasing drug offenders is

in the community’s best interests. Drug offenders may not necessarily have a

criminal personality, and may have turned to drugs for particular reasons.364

Drugs are freely available in prison, and something like over 60% of property

crimes are drug related. If judges knew that sending a person to prison was a

360 Judge Y.

Judge T.

Judge U.

Judge M.

Judge K.

361

362

363

364

269

way of going “cold turkey” from drugs, they would be happier about doing

that.365

These comments reflect misgivings about the prison system, and what happens to

prisoners after incarceration. If corruption of prisoners occurs after their imprisonment

by way of exposure to drugs, positive harm is being done to those prisoners. There was

however a positive comment on this issue:

Corrective Services do a marvellous job in trying to get people to kick their drug

habits.366

Another issue raised by one judge was the fact that a sentencer making

recommendations for parole367 does not actually have control over when the person will

be released, as such decisions are in the hands of the Community Corrections Board.368

The other influence is what you know or expect will happen to the person in

prison, or what will happen to a person with respect to a recommendation for

early parole. For example you might give a suspended sentence rather than

make a recommendation for early parole.369

If a judge makes a recommendation for parole, which is often done to take account of

mitigating factors such as a plea of guilty,370 there is no guarantee that the offender will

be released on parole at the time specified. The above comment suggests that some

judges are taking this into account in sentencing. On a related point, judges are now

taking into account the fact that the offender has been declared convicted of a serious

violent offence, with a resultant effect on parole availability and remissions,

when sentencing an offender convicted of such an offence.374

365

366

367

368

369

370

Judge M.

Judge R.

Section 157.

See Corrective Services Act 1988 (Qld).

Judge P.

Section 13, and see R v Corrigan [1994] 2 Qd R 415.

Part 9A.371

270

A number of judges expressed concern about perceived growth in the prison population

and the reasons for this.

n n c

I am horrified at the number of prisoners in the system.

Queensland has something like the fastest rate of increased incarceration in

western countries. The prison population is increasing at an enormous rate.

This is something that I am taking into account in sentencing.376

Greater penalties are being imposed by the judges. There’s now a situation

when maximum penalties haven’t changed, the crime rate hasn’t changed

appreciably, and roughly the same numbers are going though the courts. But if

you see the Corrective Services statistics, the prison population has almost377doubled in the past three years.

Prison is a very costly form of punishment and not very effective as a deterrent.

The imprisonment rate in Queensland has increased but there is no decrease in

the crime rate. Prison is not a deterrent.378

According to Queensland Government figures on the imprisonment rate published in

1999, the imprisonment rate in Queensland increased by almost 70% between 1993 and

1997.379 In 1993, the rate was 88 prisoners per 100 000 adult persons in the population,

which increased to 149.2 in 1997.380 Of the 3 839 prisoners in Queensland on 30 June

Section 157(7); Section 166(1) Corrective Services Act 1988 (Qld).

Section 161D Penalties and Sentences Act 1992 (Qld).

R v Brown; ex parte Attorney-General [2000J QCA 110.

Judge Q.

Judge M.

Judge Z.

Judge U.

Government Statistician’s Office, Prisoners in Queensland: Crime Statistics Bulletin #5, Queensland Government, Brisbane, April 1999.

Ibid.380

271

1997, 95% were male.381 The Queensland rate of 149.2 per 100 000 (as at 30 June

1997), compared with the national rate of 134.9.382 The perceptions held by the judges

in this study that the imprisonment rate in Queensland had sharply increased were

therefore correct.

By 2000, the imprisonment rate had again significantly increased. The annual

collection of prisoner data from 30 June 2000 (released in June 2001),383 revealed that

the imprisonment rate in Queensland had increased to 165.5 prisoners per 100 000

adults.384 This was the third highest imprisonment rate in Australia, and compared with

rates of 147.7 for Australia as a whole, and the highest imprisonment rate of 458.1 for

the Northern Territory.

A recent article co-authored by a Queensland judge argues against the widespread use

of imprisonment, noting that admissions to prison in Queensland increased by 117%

from 1993-1998.386 In an analysis of imprisonment as a sentencing option, Justice

Davies, a Judge of Appeal of the Queensland Court of Appeal, and K M Raymond

concluded that it rarely achieved four identified sentencing aims (stated by them to be

punishment, deterrence, rehabilitation and incapacitation).387 The authors also argue

that imprisonment is not an effective method of reducing the crime rate, and that other

sentencing methods should be employed for this purpose.388

381

382

383

384

385

386

387

388

Ibid.

Ibid.

See Australian Bureau of Statistics, Crime and Justice: Prisoners in Australia, Commonwealth of Australia, Canberra, 2001.

Ibid.

Ibid.

G L Davies and K M Raymond, “Do Current Sentencing Practices Work?” (2000) 24 Criminal Law Journal 236, 236, citing Criminal Justice Commission, Monitor, vol 4, CJC (Brisbane), 1999.

Ibid.

See however discussion on the futility of sentencing as a crime control measure in chapter 1 at1.1.

272

7.3 When prison is appropriate

A number of judges made comments about situations where they would be more

inclined to impose a prison sentence, such as armed robbery:

Robbery involving a weapon would normally attract a prison sentence, but not389always in the case of young first offenders according to the Court of Appeal.

Or violent offenders:

I am not so discomforted if I am sending particularly violent people to jail,

particularly if the offence is committed over a period of time. Or if it is a serious

drug dealer who is in it mostly for greed. If it weren’t for the very serious harm,

I wouldn’t regard them as being much worse than entrepreneurs, but because of

the harm done drug dealers are in a very serious category.390

Serious sexual offences against children were also mentioned as a type of charge where

a jail sentence was likely to result.

Cases of sexual offences against children (not minor offences but relatively

serious), will almost invariably bring a prison sentence. The Court of AppealTQ1has made it clear that this is to be so.

On the other hand, some judges had fairly strong opinions on the types of cases where

offenders should not be sent to prison to mix with hardened criminals. In particular, the

comment was made about dangerous driving offenders:

This lies at the heart of the difficulty the judge has in dealing with cases such as

dangerous driving causing death or grievous bodily harm, with a typical offender

389

390

Judge J. The case that the judge was referring to was probably Bainbridge (1994) 71 A Crim R 152.

Judge X.

Judge J.391

273

who is a young male person. These types of offenders have often had no

previous criminal history and would have no criminal tendency, but who as a

result of youthful exuberance perhaps or youthful indiscretion, find themselves

in the dock on such a charge.

The concept of a 19 year old being sentenced to prison on a charge of dangerous

driving causing grievous bodily harm who has no other criminal conduct is an

horrendous thought.

Judges are appalled at sending people like dangerous driving offenders to prison

with hardened offenders, but due to public pressure, they must be jailed.392

The law can’ t do everything for everybody. What is particularly difficult is

cases such as dangerous driving causing death or grievous bodily harm, where

people who are normally law abiding will go to jail.393

7.4 The problem with prison: a postscript

The comments above, although not comprehensive nor pretending to be representative

of the judiciary’s views on imprisonment, give some indications of judicial opinion on

that issue, highlighting in particular concerns about sending a person to prison, and the

prison system. Two final perceptive comments raise important issues about the nature

of imprisonment as punishment; first about the usefulness of prison in teaching a person

to take responsibility for their actions, and secondly that sending someone to prison can

only be a temporary solution to the problem of their criminality, as most offenders will

be let out in the end.

Even when people are sentenced to draconian penalties, they have to be let out

in the end and integrated back into society.394

392

393

394

Judge R.

Judge T.

Judge T.

274

One of the problems of sentencing a person to a prison term is that you strip the

person of responsibility, when really what you want them to do is to take

responsibility for their lives.

7.5 Community-based orders

Community-based, non-custodial or intermediate orders, howsoever called, have

proliferated in a number of jurisdictions in the past 30 years.396 As such sanctions are

seen as considerably less harsh than custodial orders, the nature of such punishment is

not questioned as often as it might be. Some intermediate orders have however been

subjected to critical analysis; for example suspended sentences, which are a type of398hybrid order, somewhere in between imprisonment and a conditional release.

Community-based or intermediate orders can also be harder to “ sell” to the general

Judge P.

See Andrew Ashworth, “Non-custodial Sentences” [1992] Criminal Law Review 242; Andrew von Hirsch, “The Ethics o f Community Based Sanctions” (1990) 36 Crime and Delinquency 162; Michael Tonry, “ Intermediate Sanctions in Sentencing Reform” (1995) 2 The University of Chicago Law School Roundtable 391; Antony Vass, Alternatives to Prison: Punishment, Custody and the Community, Sage Publications, London, 1990; Stephen Stanley and Mary Baginsky, Alternatives to Prison: An Examination of Non-Custodial Sentencing of Offenders, Peter Owen, London, 1984; Joan Petersilia (ed), Community Corrections: Probation, Parole, and Intermediate Sanctions, Oxford University Press, New York, 1998; Joan Petersilia, “Probation in the United States” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 22, The University o f Chicago Press, Chicago, 1997; Norval Morris and Michael Tonry, Between Prison and Probation: Intermediate Sanctions in a Rational Sentencing System, Oxford University Press, New York, 1990; Michael Tonry and Mary Lynch, “ Intermediate Sanctions” in Michael Tonry (ed), Crime and Justice: A Review of Research, 20, The University o f Chicago Press, Chicago, 1996. See also the description o f Victorian orders non-custodial and community-based orders (which are similar to those available in Queensland), in Fox and Freiberg, above n 35, chapter 8.

See discussion o f the ethical issues which arise in community-based orders, both in terms of proportionality and desert, and the limits or intrusiveness o f the sanction, in von Hirsch, “The Ethics o f Community Based Sanctions” , above n 396. See also discussion of the Canadian system in Anthony Doob and Voula Marinos, “Reconceptualising Punishment: Understanding the Limitations o f the Use o f Intermediate Punishments” (1995) 2 University of Chicago Law School Roundtable 413; and Michael Tonry, “Proportionality, Parsimony, and Interchangeability o f Punishments” in R A Duff and David Garland (eds), A Reader on Punishment, Oxford University Press, Oxford, 1994. See also Andrew von Hirsch, Martin Wasik and Judith Greene, “Punishments in the Community and the Principles o f Desert” (1989) 20 (3) Rutgers Law Journal 595, discussing the scaling of non-custodial penalties based on principles of desert.

Mirko Bagaric, “Suspended Sentences and Preventative Sentences: Illusory Evils and Disproportionate Punishment” (1999) 22 UNSW Law Journal 5. Also on suspended sentences, see the reports o f a Victorian study in David Tait, “The Invisible Sanction: Suspended Sentences in Victoria 1985-1991” (1995) 28 The Australian and New Zealand Journal of Criminology 143. Both o f these articles trace the origin o f suspended sentences, and contain useful reviews o f the literature on this sanction. Suspended sentences are not discussed in any detail in this study.

275

public as genuine punishment alternatives, due to a lack of understanding of what is

involved with such orders.399 Intermediate sanctions are becoming more recognised in

their own right, rather than merely as alternatives to prison 400

While imprisonment options have remained largely unchanged in Queensland over

time, the availability and choice of community-based orders have undergone significant

reform in the past 10 years. Where previously there was a choice of probation and

community service,401 there are now also intensive correction orders, which are

something of a mix of probation orders and jail terms.402 Suspended sentences of

imprisonment are not strictly speaking community-based punishments, but are

nonetheless non-custodial in nature.

A number of judges in the study made positive comments about community-based

orders, although noting various problems such as resourcing and the adequacy of

supervision of offenders on such orders. The judge making the order has no influence

on how it is carried out,403 and in addition whether there are sufficient resources

directed toward administration of community-based corrections. The following judge

elaborated on this point:

Also I should say one thing that does disturb me, I can’t really prove it, but I

think it is anecdotally accepted by most judges, that there is grossly inadequate

supervision of people on probation and community service and the like.

Particularly young people who are given probation to try to turn them around,

aren’t really getting the supervision that the legislation contemplates that they

are going to get. If probation is the appropriate penalty, it would be difficult, if

See Anthony Doob, “Transforming the Punishment Environment: Understanding Public Views of What Should be Accomplished at Sentencing” (2000) 42 Canadian Journal of Criminology 323.

Arie Freiberg and Stuart Ross, Sentencing Reform and Penal Change: The Victorian Experience, The Federation Press, Sydney, 1999, 5.

See Part 5 Divisions 1 and 2 Penalties and Sentences Act 1992 (Qld) respectively, “Probation Orders and Community Service Orders” .

See Part 6 Penalties and Sentences Act 1992 (Qld), Intensive Correction Orders.

Apart from making additional requirements as to restitution or compensation part o f the order: Penalties and Sentences Act 1992, s 104.

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not wrong, to say as a judge I am not going to impose probation because I am

not satisfied that there is sufficient supervision.404

Another judge made a similar comment about the importance of good supervision of

offenders:

A lot of what I want to achieve can only be achieved by an intelligent and

resourced corrections area 405

The need for properly resourced community corrections programs was also supported

by Davies and Raymond, who stated that there is “good reason to doubt the adequacy of

practice of supervised release programs in Australia” , and further that the main reason

for this state of things is that “insufficient government funds are spent on them” 406

7.5.1 Probation and community service orders

Probation is a community-based order involving the placing of the offender under the

supervision of a Corrective Services Commission officer for a specified period of time.

Certain conditions such as reporting are placed in the order, which can also have other

conditions added, for example, medical or psychiatric assessment407

The judges in the'study made several comments about probation orders:

People in the community seem to think that courts are weak, and sometimes they

confuse the rehabilitation of youth with weakness. A probation order can be

seen as a sign of weakness, however one of the aims of sentencing is to convey

that it is not a weakness, but is really a serious punishment.

404

405

406

407

Judge DD.

Judge P.

Davies and Raymond, above n 386, 244.

See Part 5 Division 1 Penalties and Sentences Act 1992. See also a comprehensive analysis of probation orders in the US, including perceptions o f offenders and the community, in Joan Petersilia, “Probation in the United States” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 22, The University o f Chicago Press, Chicago, 1997. See also Joan Petersilia

277

I use a sentence to send a message, evbn though it mightn’t sink in much. The

statistics for probation show that it can be a helpful order. The re-offending rate

is relatively low, and this is a message that probation orders work. The

community does realise that. It is valuable if you can divert a person from

coming back before the courts. In short it is part of the legislative aim to keep

young people out of prison. The community can be intolerant, and sometimes it

seems to feel that wild youth deserve imprisonment. It takes tolerance in the

community to support other types of [punishment].408

Community service orders operate in Queensland in a similar way to probation with the

major difference being the addition of unpaid work in the community. As such,

community service orders can be more generally “acceptable” to the community as a

non-custodial order.409 As noted by the judge above, it takes tolerance on the part of the

community to support such orders, and such tolerance is sometimes lacking.

Community service orders do not however come without problems, for example the

potential for contamination when the person is placed on work sites with other more

seasoned offenders 410

7.5.2 Intensive correction orders

Intensive correction orders can be made where the court sentences a person to

imprisonment for one year or less. The court can then order that the person serve that

term of imprisonment by way of intensive correction in the community.411 Intensive

correction orders were introduced in the Penalties and Sentences Act in 1992, but were

408

409

410

and Susan Turner, “ Intensive Probation and Parole” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 17, The University o f Chicago Press, Chicago, 1993.

Judge M.

See generally on community attitudes to community-based orders, Julian Roberts, “ American Attitudes About Punishment: Myth and Reality” in Joan Petersilia (ed), Community Corrections: Probation, Parole and Intermediate Sanction, Oxford University Press, New York, 1998.

Christopher Trotter, “Contamination Theory and Unpaid Community Work” (1995) 28 The Australian and New Zealand Journal of Criminology 162. See also Christopher Trotter, “Client Perceptions o f Community Based Corrections” (1992) 3 Criminology Australia 18; and Christopher Trotter, “The Impact o f Different Supervision Practices in Community Corrections: Cause for Optimism” (1996) 29 The Australian and New Zealand Journal of Criminology 29.Part 6 Penalties and Sentences Act 1992 (Qld).411

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not implemented until several years later, due to difficulties in setting up the infra­

structure in order for them to operate. Two judges commented on these orders:

I am finding that intensive correction orders are useful and I am using them a

lot412

I think carefully before routinely imposing sentences such as suspended

sentences which I think are over used. I like using for example an intensive

correction order where the person may benefit from that form of supervision.413

These orders were slow to catch on with the courts, but their popularity has grown as

courts have become more familiar with their use. The advantage of an intensive

correction order is that the offender has the benefit of supervision, in contrast with a

suspended sentence,414 where no supervision is available. The efficacy of a suspended

sentence depends therefore on the offender’s ability to refrain from offending during the

period of the order, restrained from doing so by the threat of serving the sentence so

suspended; whereas with an intensive correction order, active supervision occurs during

the course of the order 415 Both of these orders tend to be used as a last resort, where

the offender is being given one more chance before being sent to jail. In that context, an

intensive correction order has much to commend it in comparison with a suspended

sentence.

7.6 Shaming416

Although long a part of various cultures, shaming has only recently been introduced into

mainstream criminology. In 1989, Australian criminologist John Braithwaite played a

Judge Q.

Judge A.

Part 7 Penalties and Sentences Act 1992 (Qld).

See criticism o f suspended sentences (including for the reason o f lack o f supervision), in Mirko Bagaric, “Suspended Sentences and Preventative Sentences: Illusory Evils and Disproportionate Punishment” (1999) 22 UNSW Law Journal 5, and discussion above.

See also discussion on restorative justice in chapter 6 at part 9.

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major role in this respect with his theory of reintegrative shaming.417 Reintegrative

shaming communicates disapproval of wrongdoing to the offender, but occurs in an

atmosphere of respect and forgiveness. In contrast, stigmatisation (which occurs with418many punishment options) can increase crime.

Two judges in the present study suggested that shaming might have a part to play in

sentencing offenders.

Another thing that I think is important is shaming; for example, having a

person’ s picture in the paper. I would like to be able to do that. ... I ’d like to

have more scope for the process of shaming an offender. I would like to see

more publicity given to offenders particularly sex offenders.419

Shaming is another type of punishment which can work for some people and not

others. In Phoenix in the USA, shaming T-shirts have been used to good effect.420Also putting the offender on public display could be considered.

Although not necessarily conforming to the theory of reintegrative shaming as

suggested by Braithwaite; the suggestions of adverse publicity, shaming T-shirts and

putting the offender on display all describe forms of shaming. Public shaming is

however seen via adverse publicity in the media, as a consequence of coverage or

treatment of specific cases. One other judge in the study spoke of using a probation or

community service order to impose conditions whereby the offender was forced to

apologise for their actions, or even to perform community service in a way which

417

418

419

See John Braithwaite, Crime, Shame and Reintegration, Cambridge University Press, Cambridge, 1989; and John Braithwaite, “ Shame and Criminal Justice” (2000) 42 Canadian Journal of Criminology 281. Not all o f the literature on shaming can be dealt with here, but see discussion in Nathan Harris and Jamie Burton, “Testing the Reliability o f Observational Measures o f Reintegrative Shaming at Community Accountability Conferences and at Court” (1998) 31 The Australian and New Zealand Journal of Criminology 230; and Rob Watts, “John Braithwaite and Crime Shame and Reintegration: Some Reflections on Theory and Criminology” (1996) 29 The Australian and New Zealand Journal of Criminology 121; also Brown, et al, Criminal Laws, above n 13, at 12.2.4.

See generally, Braithwaite, “Shame and Criminal Justice” , above n 417.

Judge B.

Judge S.420

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produced humiliation, so that the community service related to the original crime 421

Having the offender apologise, or perform meaningful and relevant community service,

could be an effective and practical way of using shaming in sentencing, even without

specific provision for that option.422 Braithwaite’ s theory goes further however, and

embraces reconciliation of the offender with the community,423 and thus victim/offender

conferencing and similar mediation programs has much to offer in that regard. These

are yet to be introduced into common usage for adult offenders in Queensland 424

7.7 Flexibility and creativity

Several judges made comments about the desirability of flexibility in sentencing, by

either using existing sentencing options, or the introduction of new options.

I find the use of multiple orders very useful. It gives a lot more scope for

designing the person’s future; and not just the offender, as also there can be

benefits for the victim.425

Another judge spoke about having extra powers:

It would not be so bad if there were provisions in the corrective services system

for people like that, who do still owe a debt to society. We need to have some

institution or facility to do this; a different form of detention altogether, for

example a concept like weekend detention or more intensive community service,

Judge M. See full comment below. Having the offender publicly perform community service in a manner intended to shame the offender has been introduced in the Northern Territory: see Sentencing Amendment Act (No 2) 1996 (NT), and Juvenile Justice Act (No 2) 1996; and comment in Kate Warner, “ Sentencing Review 1997” (1998) 22 Criminal Law Journal 282, 282-284.

There have been suggestions in the literature that adverse publicity and shaming may be a useful part o f sentencing corporate or white collar offenders, see eg, Dan Kahan and Eric Posner, “Shaming White Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines” (1999) 42 Journal of Law and Economics 365.

See generally, Braithwaite, Crime, Shame and Reintegration, above n 417.

See discussion on restorative justice in chapter 6 at part 9.

Judge B.425

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as the maximum allowable number of hours is currently 240. Intensive

correction orders do not necessarily foot the bill either.426

I think the government should introduce compulsory drug and alcohol

rehabilitation services, so that we as judges could order such options. “ It is

frustrating that the community thinks we have unlimited power when we

don’ t.428

The judges also made suggestions as to other sentencing options which they would like

to have.

I would like to see introduced a concept of flexibility; using our imagination so

that different punishments were applied in different places. In Vermont in the

USA they are achieving wonders in the prison system and it is judge led.

Norway is working well as well. There are different devices used, such as

having a judge impose 300 days instead of a term in months or years. This is

proving effective.429

Another thing I would like to be able to do is to make the legislation a little

wider so that I could adjourn the sentence to see what happens. Perhaps if the

person was given a year, they might be able to rehabilitate themselves.

I would like to see the court become permitted to adjourn to give an offender an

opportunity to demonstrate that they have rehabilitated themselves. This would

include also any compensation and repairing the damage done, whatever that

may be. Sometimes a case has been adjourned while somebody is in custody.

Sometimes they have been in jail for the right amount of time, and letting them

426

427

428

Judge R.

Note that in early 2000, the Queensland government introduced the Drug Rehabilitation (Court Diversion) Act 2000 (Qld), as a trial of a court diversionary program in the Magistrates Court. The Act came into effect in mid 2000.

Judge E.

Judge S.429

282

out without imposing a jail sentence and without a conviction can be the right

thing to do 430

Another judge mentioned victim/offender conferencing:

Another thing that is useful is to have a conference with the victims. There is a

lack of this in our system. There is a lack of thoughtfulness and resourcefulness,

which reflects sometimes the older idea of the victim not being central to the

system. It would be good if judges had more opportunity to order such

conferences between the offender and the victim.431

This judge utilised a number of different options and sentencing purposes including

making the offender more accountable for their actions, by making them apologise, and

shaming. Although long, the opinions are worth repeating in full:

I try to get offenders to apologise, and I use the power under probation and

community service orders where there is power to make any other order, which

would cause the offender to behave in a way that is acceptable to the

community, or to stop the offender from again committing the offence for which

the order was made or to stop the offender from committing other offences. I

use this power to make the offender apologise in person if possible, or in

writing.

The judge has a reasonably creative role in the sentence with the ability to order

such things as compensation and apologies. Sometimes I make a community

service order be performed in a way that the offender will be humiliated, for

example if they have offended in a way which has shown contempt for a

particular group of people I will make them do community work within that

group. There is a chance for the judge to use punishment in a wide sense and to

be creative. I also find intensive correction orders to be very useful. There is

room for imagination in sentencing; to try to structure the sentence for the

430 Judge B. C f s 11 Crimes (Sentencing Procedure) Act 1999 (NSW).

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individual. If it works for one in ten, it is worth it. The sentencing process

leaves a lot of room for thought and imagination, but this would not be the case

if a prison sentence were mandatory. I once received feedback via a letter from

the community corrections officer handling a particular offender that that person

was successfully completing a community corrections order. This is very

satisfying. Despite this, there are a lot of failures, for example when you see

people on suspended sentences come back before the court. This can be a little

depressing. I find it baffling that people can’t actually perform these orders

when they know that the alternative is prison. Sometimes I tell them that

ultimately the court will beat you if you won’t do what you are told. Sometimes

they reach the limit of the community’s tolerance, but I will always give them

that chance. It is important that they learn that they must bow to the authority of

the court. It is important to give people the chance, but ultimately it is their

choice. Sometimes you see some hopeless situations.432

Deferment of sentence, mentioned above, is used in other jurisdictions, and has obvious

analogies with a suspended sentence.433 There is no formal provision for the use of an

apology as part of a sentence order in Queensland,434 however as the judge stated above

it could be used as part of a probation order. It is also a demonstration of remorse,

which may be relevant to the sentence.435

Elsewhere, creative sentencing options have involved ideas such as forcing a property

owner to live in one of his or her tenements,4j6 and other innovative sentencing ideas.437

Judge M. See also discussion on this in chapter 6.

Judge M.

On deferment of sentence in the UK, see Stephen Jones, “Deferment o f Sentence: An Appraisal Ten Years On” (1983) 23 British Journal o f Criminology 381.

Apologies have however been ordered from time to time, see sentencing note, Andrew West, “The Relevance of an Apology in the Sentencing Process” (1997) 18 The Queensland Lawyer 80.

Remorse is not expressed to be a relevant sentencing factor generally in Queensland, however it does become relevant in sentencing an offender to whom s 9(3) applies (where the offence involved violence or physical harm). In that case, s 9(4)(i) states that remorse or lack thereof is to be taken into account.

See Andrew von Hirsch, “Punishment to Fit the Criminal” (1988) 246 The Nation 901.

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8 C o n c lu s io n

Judicial discretion, and more particularly the structuring of judicial discretion, has in438recent times proved to be one of the most debated issues in the sentencing discourse.

This has been particularly so in the past five years. What has driven much of the debate

in the United States has been the issue of unjustified disparity, which had been

demonstrated by a number of studies.439 Sentencing guidelines and grids have been the

answer from many United States jurisdictions.440

Despite the issue of structuring judicial discretion being raised by the numerous

sentencing inquiries in Australia over the past 20 years,441 there has been surprisingly

little change because of these 442 Since 1997 however, Australian legislatures have

introduced a number of measures which have had a dramatic effect on limiting

discretion.443 Law and order politics appear to be behind many of these moves.444

This study demonstrates (if it was ever in doubt), that judges are strongly defensive of

judicial discretion, primarily on grounds of fairness and avoiding injustice. The judges

clearly see themselves as well suited to exercise this discretion on the grounds of

experience, expertise and judgment. Attempts to fetter judicial discretion by almost any

means were rejected. Ironically though, many of the judges appeared to accept range-

based sentencing as an appropriate sentencing method, although a number rejected

perceived interference from the Court of Appeal in ensuring they stay within the range.

437

438

439

440

441

442

443

444

See generally, Joan Petersilia (ed), Community Corrections: Probation, Parole, and Intermediate Sanctions, Oxford University Press, New York, 1998, chapter 7 “ Innovative Programs in Community Corrections” .

Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” , above n 15.

Tonry, Sentencing Matters, above n 7, 7; Zdenkowski (ibid), 58.

Tonry (ibid), chapter 1; Leslie Wilkins, “Sentencing Guidelines to Reduce Disparity” [1980] Criminal Law Review 201; see also early critique in D J Galligan, “Guidelines and Just Deserts: A Critique o f Recent Trends in Sentencing Reform” [1981] Criminal Law Review 297.

Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” , above n 15.

Ibid.

Ibid and see discussion earlier this chapter.

Zdenkowski. “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” , above n 15, and see discussion of law and order in chapter 7.

285

At times, the relationship with the Court of Appeal appeared strained, with the trial

judges insisting that they had the expertise to appropriately sentence offenders,

particularly in consideration of the fact that the offender and all of the facts of the case

were before them on sentence.

It has been suggested that judicial defensiveness on this issue has sometimes been a

reaction to criticism.445 The reaction of the Victorian Supreme Court judges to some of

the proposals by the Victorian Sentencing Committee led to the Committee describing

some of the judicial submissions to the Sentencing Committee’ s earlier discussion paper

as “a disappointing document...almost entirely negative in character. Read as a whole

the Committee feels it amounts to little more than a spirited defence of the status

quo.”446 And further,

It appears to the Committee, perhaps wrongly, that the Judges feel themselves to

be under attack. If this is so it is to be regretted. It is the system under which

the judges are forced to work that is under attack 447

According to Doob, writing of the North American experience, the issue is one of

control, and who should control sentencing.448 Tonry, noting that Australian judges

appear to have a sense of ownership of sentencing, raises the same issue.449 The judges

in this study, in common with statements by other Australian judges discussed in this

chapter, appear to have a clear sense of ownership of sentencing and do not agree with

encroachments on this. The exact reasons for this however are still unclear, as opinions

on this issue appear to differ depending on the position held by each author.

Although Australian academics and commentators have not come out in favour of

regulating sentencing discretion by means of mandatory sentencing or sentencing grids,

there is support, albeit sometimes guarded, in favour of the New South Wales system of

judicial sentencing guidelines in the form of guideline judgments, which although not

445

446

447

448

Tonry, Sentencing Matters, above n 7, 165.

Victorian Sentencing Committee Report, above n 5, 36.

Ibid.

Doob in Clarkson and Morgan, above n 42, 200.

286

binding, set out clear principles to be followed in like cases. There was also qualified

support for that system by the judges in this study, although it must be noted that the

judgment in Jurisic had only just been handed down at the time of the interviews. Some

judges were of the view that Queensland already had a system of guidelines-style

judgments; but although this is partially correct, such cases have not been systematic

and rigorous as has been the case with the New South Wales guidelines, and do not

provide guidance to nearly the same degree.

The strong support of the judges for a wide sentencing discretion to be vested in the

judiciary is not reflected in the academic literature. Commentators such as Zdenkowski,

who has frequently contributed to the literature on judicial discretion, have not come out

in defence of unregulated judicial discretion remaining with the judges.450 Neither did

the Victorian Sentencing Committee, who recommended the introduction of guideline

judgments,451 only to see this recommendation fail to be enacted because of Opposition

support for the judges who were of the view that it would unduly restrict their discretion452

m sentencing. “

On present trends, there is an increasing divide between the legislature seeking to

structure judicial discretion on the one hand; and the views of the judiciary defending

wide discretion on the other. Ironically, both points of view have been defended for the

same reasons of fairness and avoiding injustice. Advocates for structuring discretion

have argued that fairness and justice dictate the further structuring of discretion, to

avoid disparity. The judiciary argues that fairness and justice dictate the existence of

wide discretion to take into account the individual circumstances of each case.

The New South Wales Court of Appeal has cleverly headed off criticism and threats of

sentencing grids by introducing judicial sentencing guidelines, and more so, doing it in

Tonry, Sentencing Matters, above n 7, 178.

See eg, Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” , above n 15; Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 15.

Victorian Sentencing Committee Report, above n 5, 219-221.

Fox and Freiberg, above n 35, 34.452

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a way which attracted maximum publicity including coverage in the popular press 453

By contrast, the Western Australian court has declined to introduce similar guideline

judgments, despite that State being the first to legislate for that purpose. Subsequently,

the Western Australian legislature has enacted “three strikes” mandatory sentencing

laws and has proposed to introduce sentencing grids.

If judicial discretion is to remain unfettered, the judiciary must effectively communicate

their enthusiasm for the system to the legislature and public at large. If the public

begins to equate unfettered discretion with “going soft on crime” or other such

notions,454 politicians may feel compelled to respond with stronger proposals to further

structure discretion. This has already been seen graphically in Western Australian and

the Northern Territory.

Judicial discretion is already under threat in Queensland. The serious violent offences

amendments in 1997 substantially affect the judge’s ability to make a recommendation

for parole, stating that the offender must serve 80% or 15 years of their sentence before

being so eligible. A Private Member’s Bill to amend this to 100% was introduced in

1998, but lapsed.455 If however the current conservative Opposition gains government,

the possibility remains of the Bill being reintroduced, perhaps even in a more restrictive

form. The Opposition Justice spokesperson has also foreshadowed exploring

mandatory minimum sentencing in Queensland.456

Comments on sentencing options, although limited, reveal the difficulty for a judge of

sentencing someone to prison, and misgivings about the prison system in its ability to

Zdenkowski notes that the Chief Justice published an article in a daily newspaper, and also issued a detailed information package, Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” , above n 15, 64. See also Warner, “Sentencing Review 1998” , above n 132,367.

See discussion o f law and order issues in chapter 7.

See Corrective Services and Penalties and Sentences Amendment Bill 1999 (No 15 o f 1999) (L J Springborg), introduced 27 August 1998. The second reading o f the Bill failed on 14 April 1999.

The incumbent Labor Government was returned to office in February 2001, with a record majority. There are no present indications that legislation further restricting discretion will be introduced in Queensland. Such pre-election threats have also been present in other jurisdictions, eg in Tasmania in the 1998 election campaign: see Warner, “Sentencing Review 1997” , above n 421, 282.

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rehabilitate and deal with their offending behaviour, or other problems such as drug

addiction. One judge spoke of the inherent conflict of wanting an offender to take

responsibility for their lives and offending behaviour, while simultaneously sending

them to prison and in effect stripping them of responsibility.

Community-based orders were the subject of a number of positive comments, with

some concerns being expressed over resourcing issues and the ability of the system to

cope with the number of offenders on such programs. There was some support for more

flexibility in the orders which could be handed down. The strong support for

community-based orders and rehabilitative sentences457 echoes the attachment to

rehabilitation and intermediate sanctions by the judiciary in other jurisdictions.458

What was also interesting were the other sentencing options that were suggested by the

judges in the study. Two judges advocated the use of shaming, particularly for sex

offenders. Adjourning the sentencing hearing and victim/offender conferencing also

received support. One judge spoke of making offenders apologise and trying to get

them to take responsibility for their actions. That judge also spoke of the

disappointment of seeing offenders who have been given the chance to rehabilitate by

suspended sentences or community-based orders, breach the order and come back again

for sentencing.

As Zdenkowski has stated,459 judicial discretion has indeed been resilient in Australia in

the face of numerous threats. The recent public reaction against mandatory sentencing

in the Northern Territory, although by no means a response embraced by all sectors of

the community, has shown that judicial discretion in sentencing has life yet. Public

opinion, fuelled by law and order rhetoric and a consequent desire for harsher sentences,

is likely to prove the greatest threat; rather than a reasoned reply to inconsistency and

disparity. The impact of these issues on sentencing is explored in chapter 7. The next

457

458

459

Demonstrated also in chapter 6 in the discussion on rehabilitation at part 5.

See eg, Freiberg and Ross, above n 400, 201-202.

Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” , above n 15,72.

289

chapter looks at the aims and purposes of sentencing and how they are used by the

judges in practice.

289

chapter looks at the aims and purposes of sentencing and how they are used by the

judges in practice.

Chapter 6Sentencing aims and purposes

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1 In tro d u c tio n

Section 9(1) helps to focus the sentencing mind; it is a reminder of the purposes

of punishment in our particular system. It is of no harm to do that. Section 9(1)

says to the sentencer that these are the legislative purposes. Application of these

to the particular is what we do, if not we are likely to go astray.1

The last two chapters have looked at the judges’ perceptions of the process of

sentencing, their subjective views on decision-making, and the role of judicial

discretion. This chapter looks at the aims and purposes of sentencing, and how the

judges employ these in their sentencing decisions.

A discussion on restorative justice is also included in this chapter. Although it is

acknowledged that the emergence of restorative paradigms in the latter part of the

twentieth century were more intended as overall goals of the criminal justice or

sentencing system, and are not necessarily accurately described as sentencing

rationales," they are nonetheless included here as an adjunct to the discussion on

sentencing aims. Although questions on restorative justice were not asked as part of

this study, enough judges commented on these aspects of sentencing to include a brief

discussion here.

This chapter analyses the judges’ comments on the practical application of the purposes

of sentencing. Except insofar as it is necessary to explain and contextualise the judges’

Judge K.

See Andrew Ashworth, Sentencing and Criminal Justice, 2nd ed, Butterworths, London, 1995, 73-74. Some commentators do however include restoration in the list o f sentencing aims, see Kate Warner, “Purposes of Sentencing” in Criminal Sentencing, The Laws o f Australia, LBC Information Services, Sydney, Vol 12.1, para 1.

291

comments, this chapter does not revisit or re-examine the theories of punishment.

Exploring the theory behind sentencing aims in any significant detail is beyond the

scope of this thesis, and in addition, there is already a large literature on this topic.3

The emphasis in this chapter is on the judges’ comments on the theories, not the theories

themselves. As H L A Hart has pointed out, judges are not normally philosophers, nor

are they expected to be. In sentencing offenders, they do not, and are not, expected to

engage in lengthy philosophical discussions on the philosophy of punishment.4 The

theoretical underpinnings of the sentencing process are however of critical concern, and

knowledge of judicial views and attitudes towards these purposes is important in

gaining an overall perspective on how theory and practice interrelate.

1.1 The “ cafeteria system”

In Queensland, the Penalties and Sentences Act 1992 (Qld) which governs sentencing

requires sentences to be imposed for specified purposes. According to s 9(1):

9(1) The only purposes for which sentences may be imposed on an offender are -

(a) to punish the offender to an extent or in a way that is just in all the

circumstances; or

(b) to provide conditions in the court’s order that the court considers will

help the offender to be rehabilitated; or

(c) to deter the offender or other persons from committing the same or a

similar offence; or

(d) to make it clear that the community, acting through the court, denounces

the sort of conduct in which the offender was involved; or

(e) to protect the Queensland community from the offender; or

(f) a combination of 2 or more of the purposes mentioned in paragraphs (a)

For a summary o f the major themes in the literature and selected readings, see Andrew von Hirsch and Andrew Ashworth, Principled Sentencing: Readings on Theory and Punishment, 2nd ed, Hart Publishing, Oxford, 1998.

H L A Hart, Punishment and Responsibility: Essays in the Philosophy o f Law, Clarendon Press, Oxford, 1968, 3. See also discussion in chapter 1.

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to (e).

In common with similar laws in other Australian jurisdictions,5 the way in which these

purposes are to be implemented is not specified in the Penalties and Sentences Act 1992

(Qld). Judicial officers interpreting s 9(1) are free to exercise discretion in how the

purposes are to be used in a particular case, subject to appellate review of the misuse of

judicial discretion.6 As the list of purposes is comprehensive, the categories vague, and

few specific guidelines apply as to their deployment, there is room for wide discretion

in their use.

Richard Fox and Arie Freiberg, in commenting on the almost identical provision of the

Victorian Sentencing Act, point out that the five purposes cannot in logic co-exist, and

that “uncertainty as to which, if any, should be paramount is reflected judicially in

vacillation and eclecticism with the justifications for sentence differing betweeno

sentencers and varying from offence to offence” . They also note that the intention of

the judge regarding the purpose of the sentence may not be reflected by the

interpretation of the offender, which in turn may be different from the perceptions of the

public at large.9 This free choice system contrasts with a more prescriptive approach,

where, for example, it might be stated that deterrent sentences must be given to

housebreakers. It is simplistic but probably correct to say that the judiciary is often in

favour of the open system where judicial independence and discretion are not

impeded.10

Andrew Ashworth has referred to the lack of prescription of purposes as a “cafeteria”

Legislation in other jurisdictions which contains an almost identical expression of the purposes o f sentencing is: Sentencing Act 1991(Vic) s 5(1), Sentencing Act 1995 (NT) s 5(1), Crimes Act 1900 (ACT) s 429.

See discussion on appeals in chapter 5 at part 5.

Section 5(1) Sentencing Act 1991 (Vic).

Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed, Oxford University Press, Melbourne, 1999, 203.

Ibid. Note however that this risk is likely in relation to any sentencing rules.

See for example, Sir Guy Green, “The Concept of Uniformity in Sentencing” (1996) 70 Australian Law Journal 112. (Sir Guy Green was formerly the Chief Justice o f Tasmania.). See also the responses to the present study, discussed in chapter 5.

293

system,11 and a “prescription for sentencing anarchy” .12 In relation to free choice and

discretion in sentencing rationales, Ashworth has this to say:

There are many who would agree that sentencers ought to have some discretion

so as to take account of the peculiar facts of individual cases. So be it. But does

that remove the argument for bringing the rule of law as far into sentencing

decisions as possible? The rule of law, in this context, means that judicial

decisions should be taken openly and by reference to standards declared in

advance. It is one thing to agree that judges should be left with discretion, so

they may adjust the sentence to fit the particular combination of facts in an

individual case. It is quite another to suggest that judges should be free to

choose what rationale of sentencing they will adopt in particular cases or types

of case. Freedom to select from among the various rationales is a freedom to

determine policy, not a freedom to respond to unusual combinations of facts. It

is more of a license to judges to pursue their own penal philosophies than an

encouragement to respond sensitively to the facts of each case.13

Ashworth also notes the absence of ranking of purposes in such a system:

Even where a system pursues a plurality of aims rather than a single aim, it is

essential that the various aims be either ranked in order of priority or confined to

distinct spheres of application. Any system which allows courts to choose

among sentencing aims without clear guidance will produce disorganisation,

with scant respect for consistency, accountability or rights.14

Ashworth, Sentencing and Criminal Justice, above n 2, 60; Andrew Ashworth, “The Criminal Justice Act 1991” in Colin Munro and Martin Wasik (eds), Sentencing, Judicial Discretion and Training, Sweet and Maxwell, London, 1992, 82.

Andrew Ashworth, “Criminal Justice and Deserved Sentences” [1989] Criminal Law Review 340, 350. See also criticisms of a similar approach in the Canadian legislation (s 718 Criminal Code) in Julian Roberts and Andrew von Hirsch, “Legislating the Purpose and Principles of Sentencing” in Julian Roberts and David Cole (eds), Making Sense o f Sentencing, University of Toronto Press, Toronto, 1999.

Ashworth, Sentencing and Criminal Justice, above n 2, 60.

Ashworth, “Criminal Justice and Deserved Sentences” , above n 12, 355.

294

The main problem thus identified with a plurality of aims is the potential for

inconsistency. This point was also made by the Australian Law Reform Commission in

a sentencing discussion paper, where it was said that “ [T]he contrary and often

competing justifications for punishment lead to disparate approaches by judicial

officers” .15 The ALRC recommended the adoption of a primary aim, just deserts,16

which was capable of being modified by reference to other considerations,17 thus

providing guidance, but preserving flexibility.

The Queensland judges are therefore sentencing under such a system where a

multiplicity of aims is specified, but without ranking or guidance as to their use in the

legislation. This chapter examines the use of these purposes by the judges, both in

relation to their understanding of the meaning of the purposes, and their practical

application.

2 S e n te n c in g p u rp o s e s

2 .1 Section 9(1) P e n a ltie s and Se n te n c e s A ct

In the interviews for this study, the judges were asked for their views on the purposes

for sentencing in s 9(1) of the Penalties and Sentences Act 1992 (Qld). The judges were

not asked about the sentencing factors in s 9(2), as the applicability of that section

differs markedly on a case by case basis, as noted by this comment:

You also have to keep in mind the difference between purposes and principles of

sentencing. Purposes are the legal embodiment in an Act of Parliament of an

enormous amount of criminological, sociological, theological, and demographic

research over a period of centuries; and incorporating a lot of common law

developments. Parliament has attempted to capture the essence of the process.

It is quite deliberate that revenge and retribution aren’t one of the purposes.

Australian Law Reform Commission, Sentencing: Procedure, Australian Law Reform Commission (ALRC DP 29), Canberra, 1987, 15.

See recommendation 7, Australian Law Reform Commission, Sentencing: Report No 44, Australian Government Publishing Service (ALRC 44), Canberra, 1988.

Ibid, recommendation 8.

295

Principles are different (for example s 9(2) of the Qld Act), because all of the1 8individual circumstances are taken into account.

Section 9(1) was seen by the judges as generally useful, for example this comment:

It is good to have a statement of purposes in the Act. It gives a general direction

to the whole process. You identify your aim and build from there. The purposes

are very necessary as the foundation of the Act. In a day to day situation I don’t

have any set views on the application of the purposes.19

Two judges spoke of early concerns by some members of the judiciary about the

Penalties and Sentences Act 1992 (Qld), noting that judges were concerned that the Act

was too restrictive and unnecessary.

When the Penalties and Sentences Act first came out, concerns were expressed

by judges to the Attorney-General that detailed legislation such as that was

unnecessary. When you attempt to hedge in judicial discretion it is a recipe for

future difficulties. ... In so far as the Act sets out commonly known principles

and purposes of sentencing these are superfluous, as any judge would know that

these are relevant.20

When the Penalties and Sentences Act originally came out judges were91concerned it was too restrictive.

The purposes provided in s 9(1) were likewise considered too restrictive for one judge,

who considered that by using specific language, the purposes did not allow the court

scope for flexibility in their interpretation:

Judge H.

Judge G.

Judge R.

Judge U.

296

I ’m not a great believer in having guidelines set down (eg in the Penalties and

Sentences Act), as there is always a case which falls outside the guide, and then

you’re hamstrung. For example, s 9(1) talks about the only purposes for which

sentences can be imposed ...What the legislation has done is to set out in s 9(1)

the specific words, and that can be quite restrictive. For example, s 9(1 )(b)

which provides for rehabilitation, is quite specific, and reads as follows: “to

provide conditions in the court’ s order that the court considers will help the9 9

offender to be rehabilitated” . These provisions are too structured.

Despite the fact that the final comment above makes a valid point about restrictive

wording of the sections, the comments as a whole are somewhat ironic in that they

reveal perceptions by some judges that the Act is too structured and restrictive; yet

judges sentencing under this system have broad scope and almost complete discretion as

to use, priorities and combinations of sentencing aims.

2.2 Judicial ambivalence

Many judges did not see the purposes for sentencing as set out in s 9(1) as new or

innovative, with comments made that it merely set out the law before the Act. Some

judges went further and implied that setting out the purposes for sentencing was

unnecessary:

This section restates the well understood principles of sentencing. I apply these

principles now and would previously have always done so. I also feel that s 9(2)

states the obvious as these are things that all judges would take into account

anyway.23

The Act sets out the sorts of things people took into account anyway. Section

9(1) sets out the policy of the law before the Act.24

Judge EE.

Judge C. Section 9(2) contains a list o f the factors which are to be taken into account in sentencing.

Ju dge D .

297

25These are well established principles which were in existence before the Act.

With respect to the purposes in s 9(1), sentencing is a continuum, and the same

judges who were sentencing before the act came into effect would be applying

the same principles. These are not revolutionary principles, they have

articulated what was in the minds of courts previously. Another example of this

is s 9(2)(a) which talks about imprisonment as a last resort. This is a principle

which has always been applied.26

These are the classical statements of the purpose of punishment and are set out

in statutes. Basically it is the sentencing principles which have always applied.27

Section 9(1) of the Act is what we were doing as judges anyway. All of the

purposes are flawed.28

The principles in s 9 are a codified version of the principles of sentencing, which

we have always known.

Section 9(1) sets out the common law principles. The courts have sentenced

along these lines for years.30

The Penalties and Sentences Act sets out what judges were doing in the

sentencing process anyway. It was basically designed to set out these common

law purposes.31

Judge I.

Judge K.

Judge N.

Judge S. (No further elaboration was given of this comment.)

Judge T.

Judge U.

Judge Y.31

298

Section 9(1) of the Penalties and Sentences Act states what were the purposes at

common law.32

These are basically the things that one automatically considers as a sentencing

judge.33

Quite often there is debate in matters both in the Trial Division [of the Supreme

Court] and in the Court of Appeal about the weight to be given to various

factors. These are usually principles that everybody would instinctively take

into account. There are a lot of sentencing decisions where you don’t articulate

all the principles, ie, you just sentence and everyone knows what the relevant

factors are.34

Section 9(1) states the obvious, but who is it there for? It is fairly trite.35

It probably did not need a statute to look to lay down the factors which a judge

looks at. There is an automatic process which one goes through. It considers

more than just those items set out in s 9(1). One has to look also at the factors

set out in s 9(2).36

Two judges also described the purposes in s 9 as “motherhood statements” :

Section 9 is a symptom of a wider problem. There is a desire to put everything

down in black and white. They are really motherhood principles. The risk is

that while you’ve got a catch all phrase at the end, there tends to be an over-y-j

emphasis of the wording of the Act.

Judge BB

Judge Q.

Judge V.

Judge E.

Judge L.

Judge V.37

299

This is almost a motherhood statement. These are the classical statements of the

purpose of punishment and are set out in statutes. Basically it is the sentencing

principles which have always applied.38

As can thus be seen, the judges did not generally see the purposes of sentencing as set

out in s 9(1) as being more than a restatement of what they were doing previously.

Several of the judges saw the statement of purposes in s 9(1) as almost pointless.

Descriptions such as “trite” and “motherhood statements” were indicative of this. On

one possible interpretation of this, these views could be seen as part of the somewhat

defensive views toward encroachments on judicial discretion,39 although it is apparent

from these judicial comments that the statutory restatement does not impose restrictions.

3 T h e p ra c t ic a l u s e o f s e n te n c in g p u rp o s e s

3.1 introduction

Section 9(1) Penalties and Sentences Act 1992 (Qld) gives the sentencer a wide

discretion in how the purposes are to be used in practice. As seen above, there is no

single overriding aim, nor are there purposes prescribed for particular categories of

offence or offender. Questions therefore arise about how the purposes are implemented,

and whether this is occurring in an effective way.

Some of the judges themselves questioned whether there is an effective application of

these purposes:

There is a real question as to whether the way our courts deal with sentences is

adequate to implement the purposes of the Act.40

Judge N.

C f also the views of the New South Wales Law Reform Commission who were not in favour of setting out sentencing principles in legislation: New South Wales Law Reform Commission, Sentencing: Discussion Paper No 33, New South Wales Law Reform Commission, Sydney,1996; New South Wales Law Reform Commission, Sentencing (Report No 79), Sydney, 1996.

Ju d ge G .40

300

There were different views as to whether the purposes should be referred to on a regular

basis:

When sentencing, I look at the principles in s 9 of the Act and the levels of

sentencing for the sort of offences I am dealing with, but no two cases are the

same. ...I always consider all the purposes in s 9(1) in sentencing. Sometimes I

do so in a formal sense, but often they are simply a part of what I decide to do.41

I use a sentencing pro-forma which makes sure I cover everything necessary, but

I don’t necessarily slavishly follow it. It is a helpful reminder. It means that I

sentence in a standardised way, as each party makes submissions I write it in.

Sometimes I need to enlarge it a little more if there are contested facts and it

breaks down, but this happens very rarely. On the third page I have a list of the

purposes and I read out the ones verbatim which apply.42

I would refer to the purposes in s 9(1) but not necessarily expressly in a

particular case. They are all fundamental things to take into account.43

Because we have the governing principles under the Act, these are a great refuge

and assistance. One also must however listen carefully to the submissions put

before the court with respect to that particular person 44

I would usually mention the purposes in s 9(1) 45

There’s no doubt every time you sentence you consider all of the things in

s 9(1).

I don’t think you would find a judge who doesn’t apply s 9(1).

Judge J.

Judge A.

Judge W.

Judge K.

Judge P.

301

Section 9 is great, because it is clearly set out, and proscribes the power to mark the

limits of the power to sentence 46

From these responses it could be concluded that the purposes of sentencing are taken

into account by judges when sentencing, but are not necessarily overtly stated as part of

the sentencing remarks. Only one judge spoke of using a pro-forma system and

systematically addressing the applicable purposes on sentence 47 The comments made

by some of the judges appeared to indicate a view that the purposes of sentencing did

not have high priority in the sentencing process. This was particularly so with the

description of them as “trite” and similar comments seen earlier. This inevitably raises

issues about the links between the academic literature, the statement of the law by the

legislature and the actual practice of sentencing48 These issues will be further

discussed below.

3.2 Relationship and balance between different consid erations

The balancing theme, which was frequently mentioned by the judges in relation to the

sentencing process generally 49 was also to applied by the judges to the purposes for

sentencing. This is hardly surprising given the strong attachment to the concept of

balancing, seen when the judges were discussing sentencing generally.

There is a counter balance in sentencing between rehabilitation, deterrence, and

retribution. This is not too difficult.50

From time to time one or more [of the purposes] will attract a greater

prominence.51

Judge Z.

See Judge A, above.

This is also linked with the judges’ belief that judicial discretion is critical to the sentencing process, and that they should be free to choose a sentencing rationale in a particular case basedon their own judgment. See also Ashworth, Sentencing and Criminal Justice, above n 2, 60.

See discussion in chapter 4 at part 2.

Judge O.

Judge N.51

302

I have no social aims in sentencing apart from those in the Act. In a particular

case it is a balance between different considerations, but not all of the time. It is

an exercise of discretion which balances various factors in the process. It is not

a contest between great social merits.52

Every sentencing process involves a balancing of the principles of those which

tend to favour a heavier penalty and a lighter one.53

Sentencing is often a matter of balancing deterrence against rehabilitation.54

Perhaps predictably, six of the judges said that they would decide which purpose they

used depending on the facts of the case.

Which of the three main purposes of sentencing I use, (retribution, deterrence

and rehabilitation), depends on the facts before me.55

Which is prominent of the purposes depends on the facts.56

The purposes in s 9(1) should be applied to each case on its facts.57

With subsections (a) to (e), in determining which of these applies depends on the

facts of the case, you look at the circumstances of the offender, and the crime or58crimes of which the person may have been found guilty or pleaded guilty.

As I say you’ve got all the considerations in the Penalties and Sentences Act,

and this is perhaps an overgeneralisation. In any particular sentence, there are

Judge G.

Judge I.

Judge BB

Judge T.

Judge Q.

Judge Y.

Judge Z.

57

303

probably only two or three factors which are of significance. Not every sentence

requires consideration of all of the purposes of sentencing.59

Which of the purposes to apply depends upon the nature of the offence.

Sometimes the offence is of such a nature that prison is the only alternative, for

example with sex offences with children a sentence will involve some time in

prison unless there are exceptional circumstances.60

One judge stated that for violent offences they would follow a particular course:

In relation to the specific purposes in s 9(1), I would use punishment and

deterrence in cases of violence. I would say that people have to be deterred from

this behaviour. Also protecting the community is important.61

The balancing of the purposes discussed here is illustrative of the way in which the

judges deal with the situation of having five competing aims of punishment from which

to choose, and being provided with no legislative guidance as to how to do this. In

addition, as seen above, the judges did not see their practice under the Act as any

different from what they were doing before. Further, none of the judges identified this

as a problem; most who discussed it saw themselves as competent to undertake the

choice of sentencing aims in a particular case. Ashworth however is critical of a

sentencing system which aims to have the purposes of sentencing balanced in every

case, and notes that a major source of disparity in sentencing is the difference in penal

philosophies between sentencers.62 The desire on the part of some judges for balancing

the purposes in each case, may not necessarily be a desirable goal.63

The balancing of the purposes as described by the judges appears to operate as a subset

of the general balancing in the sentencing process, described in chapter 4. The

application of purposes to specific offences will be discussed below. As will be seen,

Judge DD.

Judge J.

Judge C.

Ashworth, Sentencing and Criminal Justice, above n 2, 60-61.

304

this tended to differ between individual judges. The general lack of guidance on the

application of these purposes to particular cases tends to confirm the arguments put

forward in relation to lack of consistency and accountability in the application of these

aims and purposes.64

3 .3 Do the judges specifically refer to the p u rp oses?

Although s 9(1) specifies the purposes for which sentences can be imposed, most judges

in the study said that they tended to keep the purposes in the back of their mind, rather

than specifically referring to them. It is debatable however whether or not conclusions

can be drawn from this to infer that judges do not think about philosophy and

jurisprudence when sentencing.

Specific comments were as follows:

I don’t however specifically refer to them [the purposes in s 9(1)] in the

sentencing process.65

Punishment, deterrence and retribution are the three most important things. I

never refer to these specifically in my sentencing remarks, but I always keep

them in mind.66

I don’t look at it unless I am specifically referred to it by counsel. I will ask

them why I should give greater weight to one of the purposes over another.67

When sitting as an appellate judge, I consider the purposes set out in s 9(1) of

the Act in determining whether the sentencing judge below has erred. As a

sentencing judge at first instance, I would always consider those sentencing

guidelines, but generally would not refer to them specifically unless the sentence

Ashworth, “Criminal Justice and Deserved Sentences” , above n 12, 355.

Judge C.

Judge D.66

305

was so unusual that it had to be clearly justified in the sentencing comments.

...I would apply the purposes set out in s 9(1) as required by the facts of the68case.

As a sentencing judge, I don’t ever think specially about the purposes of

sentencing, because they are so ingrained into your thinking. I don’t just mean

the purposes under the Act, but also the purposes in the common law, for

example as stated in the cases of Veen No 1 and Veen No 2. This process is

almost instinctive. I have never gone to s 9(1) during the sentencing day.69

Section 9(1) has a vital role in every sentence. I rarely specifically mention it

however, but it does apply to every sentence more or less.70

It is trite to say that you can’t go off on a frolic, however the sentencing process

is governed by the principles under the Act. In the Court of Appeal you would

not often see these principles form part of the Court of Appeal’s judgments, but

this doesn’t mean that they are not always in the back of the mind of judges.71

I don’t go to s 9(1) in a particular case. “

When I am sentencing I don’t necessarily open the Penalties and Sentences Act

and refer to the principles in s 9, unless I have been referred to them. The

principles in s 9 are a codified version of the principles of sentencing, which we

have always known.73

As can be seen from the comments on section 9(1) generally above, the judges were

generally of the view that the statement of purposes was reasonably helpful, although

Judge E.

Judge F.

Judge H.

Judge I.

Judge K.

Judge N.

Judge T.73

306

there was a significant number who did not see the purposes as going beyond what they

already knew. Whether or not this was in fact the case, the statement of purposes is

important also to other parties in the process (for example the media or the community),

and as a clear statement by the legislature of the aims and purposes of the process.

Stating the purpose of the sentencing is also part of giving reasons, which assists the

offender, other parties and the public in general to understand why the particular

sentence is being handed down.74 Not all judges specifically discussed this however,

and it cannot therefore be concluded that this course is followed by the majority. In

fact, as seen below, many of the judges appear to have specific ideas of when the

purposes should apply.

4 Section 9(1 )(a)

(a) to punish the offender to an extent or in a way that is just in all the

circumstances

4.1 Ju s t d eserts

As has already been discussed,75 the 1970s and 1980s saw the re-emergence of a new

form of retributivism, just deserts. This notion of punishment as deserved was

championed by Andrew von Hirsch,76 and has grown in popularity, forming the basis of

many sentencing regimes. The expression of the theory of just deserts also conveys the

notion of censure to the offender and the community.77 Just deserts has however been

criticised on the basis of unfairness. According to Michael Tonry, just deserts is “sound

See discussion on giving reasons in chapter 4 at 8.7.

See chapter 1 at 5.3.

Initially as author of the report, Andrew von Hirsch, Doing Justice: the Choice o f Punishments, Northeastern University Press (originally published: New York, Hill and Wang, 1976), Boston, 1986; and then in many subsequent books and papers, see in particular, Andrew von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing o f Criminals, Rutgers University Press, New Brunswick, 1987; and Andrew von Hirsch, Censure and Sanctions, Clarendon Press, Oxford, 1993.

Ashworth, Ashworth, Sentencing and Criminal Justice, above n 2, 69; Von Hirsch, Censure and Sanctions, above n 76.

307

n o

in theory but defective in practice”. Moreover, just deserts works if there is a just7Qworld, but that is of course not the case.

Desert is also linked to the principle of proportionality; which includes ordinal

proportionality meaning the relative seriousness of offences amongst themselves; and

cardinal proportionality which involves ranking to a scale of punishments, and requireson

that the penalty be in proportion to the seriousness of the crime. Section 9(1 )(a),

which talks about punishing the offender in a way that is just in all the circumstances,

invokes notions of proportionality, and possibly desert. Because it is widely drafted and

capable of differing interpretations, it is not necessarily a statement of retributive theory,

or even of just deserts, although the wording is strongly suggestive that this is in fact the

case.

According to the Honourable Dean Wells, the Attorney-General responsible for the

introduction of the Penalties and Sentences Bill, retribution in any form is not included

in s 9(1), and is not therefore a valid purpose for sentencing in Queensland. According

to the Minister’s reply to debate on the second reading of the Bill:

This Bill is not based on the idea of retributivism. Justice does not mean

retributivism and, where the term is used in the Bill, it should not be taken that

the Legislature intended it to mean so. This Bill is based on the idea of

protecting society from harm.

Notions such as the doctrine of proportionality, which is derived from the

philosophy of retributivism, is not part of this Bill. The criteria to which courts

can be expected to be addressed are contained in clause 9. Those criteria are

Michael Tonry, Sentencing Matters, Oxford University Press, New York, 1996, 15.

Tonry also cites other commentators who have agreed that retributive schemes cannot be justified in practice: see Tonry, Sentencing Matters, above n 78, 17, citing R A Duff, Trials and Punishments, Cambridge University Press, Cambridge, 1986, 294.

Ashworth, Sentencing and Criminal Justice, above n 2, 70. On proportionality, see also Andrew von Hirsch, “Proportionality in the Philosophy o f Punishment: From ‘Why Punish?’ to ‘How Much?’ “ (1990) 1 Criminal Law Forum 259; Richard Fox, “The Meaning o f Proportionality in Sentencing” (1994) 19 Melbourne University Law Review 489; and Richard Fox, “The Killings o f Bobby Veen: The High Court on Proportion in Sentencing” (1988) 12 Criminal Law Journal 339.

308

derived from the rational utilitarian philosophy of protecting society and its

members from harm - the philosophy which is contained in the Preamble of the

Bill.81 *

The former Attorney-General further elaborated on these comments in a later82interview:

What I was anxious to do was to introduce a Bill which referred to the

philosophy of punishment which I believed to be correct, and that was the

utilitarian theory of punishment. I am a Benthamite utilitarian and I put my

utilitarianism to bear in the construction of this Bill and of course in the

construction of this section, [s 9] so you’ll see nothing in that Bill about

retribution. I went through the Bill and carefully screened out everything that

the authors of the Bill put in about retribution after I told them not to put

anything about retribution in.

You can only get retributivism in [s 9(1 )(a)] if you imagine that retributivism is

an ingredient of justice. There wasn’t anything else I could do. I had to use the

word “just” in the Bill, 1 couldn’t really take that clause out. I knew that it

would be used as a backdoor device from time to time, by confused or vindictive

people to reintroduce retributivism, but what else could I do? If people are

going to introduce retribution, if they mean to introduce it, then they’ll introduce

it through that clause. But there wasn’t anything else that I could do. The word

“just” does not mean retributive, and I hope that that would be read in the light

of the preamble.83

Despite Wells’s denials that retribution was included in the purposes in the Act,84according to Brett Mason, s 9(1 )(a) does connote retribution and just deserts.

The Honourable Dean Wells, Interview with the author, Parliament House, Brisbane, Queensland, 12 September 1996.

Ibid.

The entire interview transcript is reproduced in the Appendix to this thesis.

Brett Mason, “A Not So Rational Philosophy: A Critique o f the Penalties and Sentences Act 1992 (Qld)” (1995) Queensland University o f Technology Law Journal 67.

81

82

83

84

309

It is difficult to conceive of a modem sentencing code that ignores retributivism

as a justification to punish. And so it is with the Penalties and Sentences Act.

For while the Attorney denies its existence as a sentencing principle it tops the

list of authorised sentencing purposes in s 9 of the Act. ...This is a classic

statement of just deserts. It does not draw upon rehabilitation, deterrence,

disapproval or community protection for the justification to punish.85

Further, Fox and Freiberg state that s 5(l)(a) of the Sentencing Act 1991 (Vic) (which is

in almost identical terms to the Queensland s 9(1 )(a)), contains a retributive rationale

connoting just deserts; and further, note that the Victorian Sentencing Committee

rejected a pure form of retributivism, considering that it had little application to

sentencing today.86 This statement adds weight to Mason’s assertions regarding the

inclusion of just deserts in s 9(l)(a).

On the face of it, s 9(l)(a), and with it s 5(l)(a) of the Sentencing Act 1991 (Vic) and all

other manifestations of this provision in Australia,87 * * does contain a clear statement of

just deserts. This statement of just deserts is however qualified by reference to “all the

circumstances”, meaning that it goes further than pure retributivism, or even pure just

deserts. Von Hirsch himself, the leading advocate of just deserts theory, distinguishes

just deserts from pure retribution, linking desert strongly with proportionality.

The former Queensland Attorney-General could therefore be said to be correct when he

stated that retributivism is not part of the Act, if he is there referring to pure

retributivism, although it may be a matter of semantics. It is difficult to deny that just

deserts is represented in s 9(1 )(a), and Wells does not specifically do this. Wells also

refers to the inclusion of utilitarian notions in the Bill, which are clearly represented in s

9 in the form of deterrence, rehabilitation and protection,90 in addition to s 3 and the

Ibid 75-76. The denial referred to is in the Parliamentary Debates.

Fox and Freiberg, above n 8, 204-205.

Section 5(1 )(a) Sentencing Act 1995 (NT ); s 429(a) Crimes Act 1900 (ACT).

Von Hirsch, Doing Justice: The Choice o f Punishments, above n 76, 46.

Von Hirsch, Censure and Sanctions, above n 76.

Refer s 9(1 )(b), (c), (e), and discussion below.90

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Preamble. Because there is no order of preference stated in s 9(1), nor is there any

restriction or prescription on how the purposes are to be employed in sentencing, it is

left to the discretion of the sentencing judge as to how the purposes are to be used in a

particular case. As already noted in this chapter,91 s 9(1 )(a) is in virtually identical

terms to the Victorian Sentencing Act with only a few words changed, which are of little

significance. It is not unreasonable to suggest therefore that the wording of s 9(1) of

the Queensland Act was in effect predetermined by the Victorian process, as the

Victorian provision appears to have been accepted in Queensland almost wholly without

modification.

It is worth noting that the Victorian Sentencing Committee, on whose recommendations

the Victorian Sentencing Act 1991 was based, did not see retribution in its pure form as

having much application today, but did consider just deserts to be an appropriate93sentencing aim.

4.2 Retribution

Whether or not commentators think that s 9(1 )(a) includes retribution, and even whether

the Attorney-General who introduced the Bill thinks that this is the case or not; becomes

in practice somewhat of a moot point, depending on the views of the judges who are

interpreting the law in court on a daily basis.

There was no general agreement between the judges in the study on what s 9(1 )(a)

actually meant. A couple of judges appeared to see it as having no particular meaning:

Section 9(1 )(a) is really all about what we do in the process. It is a statutory94truism.

See also the genesis of the Queensland Act in chapter 2.

The Victoria provision reads: s 5 (l)(a ): to punish the offender to an extent and in a manner which is just in all o f the circumstances.

Victorian Sentencing Committee, Sentencing: Report o f the Victorian Sentencing Committee, Attorney-General’s Department, Victoria, Melbourne, 1988, 88-95, 119.

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Section 9(1 )(a) which talks about punishing the offender is really stating the

obvious. This is a balancing process. Section 9(1 )(a) has no meaning in practice

except what it says, to punish the offender to an extent or in a way that is just in

all the circumstances.95

Another judge considered that it did not include retribution:

I am conscious of the fact that certain public perceptions about purposes are not

reflected in s 9(1), for example revenge or retribution, are not specifically stated.

I am very conscious of that. It is not only the things that are there in s 9(1), but

also those which aren’t there which affect you.... Retribution and revenge

aren’t purposes set out in the legislation. There are very good sociological

reasons why retribution and revenge shouldn’t be part of the process. It is long

recognised by theologians and philosophers that revenge and retribution are bad

for the person who has been wronged.96

Other judges were of the view that retribution was included in s 9(1 )(a):

Section 9(1 )(a) includes retribution. The concept of “to punish” is close to

retribution. This isn’t a word however that is used much in practice. Section

9(1 )(a) as a purpose would rarely get mentioned.97

With respect to s 9(1 )(a) I take into account the circumstances of the offender

and the circumstances of the victim. This is a type of compassionate retribution

or intelligent retribution.98

One of the main purposes of sentencing is punishment which is expressed in

s 9(l)(a). Although s 9(1 )(a) does have elements of retribution in there,

punishment is a better term to use, as retribution has other connotations. It also

Judge I.

Judge K.

Judge H.

Judge M.

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has elements of taking responsibility for what you have done, rather than just

deserts. Some people who have difficult personal circumstances, for example a

personality disorder, aren’t as responsible as other persons in the street. What is

just for them may be totally different. Consideration of a person’s personal• • 99circumstances is important.

What can be seen from the judicial responses in this study is a tendency forjudges not

to formally refer to s 9(1 )(a) with any frequency; and secondly that they do not

generally approve of the concept of retribution in sentencing however it is phrased.

There was also considerable confusion about the meaning of the provision, and whether

the concept of “punishment” in s 9(1 )(a) has any particular meaning apart from the other

purposes. Effectively, the judges were projecting their own interpretations of the word

“just” onto the section, rather than seeing s 9(1 )(a) as a reflection of the criminological

literature on just deserts, (if indeed this is the case, as noted above in the discussion on

what this subsection actually means).

In addition, of the three judges above who did consider that s 9(1 )(a) included

retribution, all attempted to modify or otherwise justify the minimalisation of the use of

retribution. Retribution itself was seen as a pejorative term, or at least one needing to be

qualified in its use.

4.2.1 Retribution as a sentencing purpose

None of the 31 judges interviewed spoke in favour of retribution as a reason for

sentencing, and some actively opposed it, as can be seen below. In addition, many felt

that the community was demanding retribution as part of sentencing.

Retribution is an unnatural approach. It appears however to be better understood

by the public than the other tenets. The difficulty is that however severe the

retribution, it would not satisfy those who have been injured. There has been

appalling misbehaviour in the past in the system. Great severity has followed

9899

Judge P.

Judge Y.

313

the mindless application of retribution. It is all a phase - we are just coming out

of the phase of rehabilitation and have gone into a phase of retribution.

Retribution certainly has got its problems. Sometimes it is described as “done

the crime, served the time”. Retribution isn’t however any reason for

imprisonment. Where is the logic in imprisonment? It’s retribution gone mad.

The reality is that punishment won’t stop anybody from committing an offence

again.

A retributionist is a social contractor. Break the law and pay the penalty, but the

offender is then put back into society and has not been cleansed; they are exactly

the same person, in fact may have had a brutalising experience in prison. You

can ask yourself the question, how did the court arrive at the term of

imprisonment - nobody knows. We have been conned by the concept of

imprisonment and we have to ask ourselves, why are we doing this?100

Retribution is difficult. For example with murder where a person will be

receiving life imprisonment, it is important not to trivialise the incident when

sentencing, so that the seriousness of it comes out. It is important in sentencing

for such an offence to say the right things, to give the sentence the solemnity it

deserves but without descending into a tirade. I am not sure retribution plays a

huge part these days in sentencing.101

Retribution is a dead issue unless there is a crime against a particular individual

by someone who is perhaps morally bankrupt.102

One judge interviewed said that judges might not think that they are sentencing on the

basis of retribution, when in fact this is what they were doing:

I am starting to think what we (the judges) are really talking about in court is

retribution.103

100101102

Judge S. Judge V. Judge BB.

314

What these comments indicate is a general dislike by the judges of retribution as a

sentencing purpose. This is further demonstrated by the lukewarm response seen in

relation to s 9(l)(a). The notion of “justice” was however favoured by one judge:

I don’t see my role as a judge as to rehabilitate. My role is to give a sentence

that gives justice in the particular case. I would however prefer to leave the

person in the community rather than send them to jail.104

The statement by this judge that they don’t see that it is their role to rehabilitate

offenders appears to conflict with their sentiment that they would prefer to leave the

person in the community.

4.2.2 Retributive pressure from the community

It was evident from the responses in this study that the judges were feeling pressure

from the community to sentence on the basis of retribution, but were resisting this

pressure; and felt that this retributive pressure needed to be kept in balance with all of10'Sthe other factors in the process.

Comments from the judges on perceived pressure from the community were as follows:

We punish people for taking revenge, but on the other hand the community

seems to want the courts to sentence with motives of revenge. It is long since

recognised that revenge and retribution are for God or some higher being, not

the judge. It seems to be more exciting in the media to report the more extreme

103

104

105

106

Judge CC.Judge H.Public opinion and community expectations are further explored in chapter 7.

Judge H.

315

The public seems to be demanding vengeance. They seem to be saying if

somebody has suffered, the person must suffer.107

If you are going to analyse what the courts do, we are the means by which

society gets its retribution. ...When we start jailing some of the people we are

obliged to jail, where personal rehabilitation is not an issue, we disguise this by

calling it deterrence, but it is really retribution. ... Deterrence is something that

you can’t prove is effective anyway, by definition. Judges find it easier to say

that the sentence is acting as a deterrent rather than retribution; it is more

socially acceptable.108

Reporters often fix on the angle that a person’s life is worth for example, a mere

two years. There seems to be a system of payback in the community which is

similar to the concept in the Papua New Guinea highlands.109

I think there is an element of society’s retribution in sentencing, but that can’t be

the prime consideration. Retribution is often I think the motive behind

statements by victims of crime organisations. It is important because only if

members of society feel placated can they be prevented from taking the law into

their own hands.110

One of the judges questioned the way in which this pressure was being applied and the

motives behind it:

What is the virtue of punishment as a social or moral thing? Why do we punish,

is it because we feel it is just? It is a terrible thing to do. Why do we punish,

because they’ve done something really bad? It rings a bell with a certain animal

sense in us, an eye for an eye, a tooth for a tooth. The alternative is not to do

anything at all but then the person gets away with it. Then it feels not right.

107

108

109

110

Judge U.Judge CC.Judge R.Judge DD.

316

Perhaps sometimes punishment is simply punishing another because we like to

inflict great pain; there seems to be a desire to inflict pain on others. If you say

punishment is not a vengeance thing, but it wouldn’t be right for a person to do

it and get away with it, maybe that cuts a lot of the fire and brimstone out of law

and order.111

Commentators have noted the continuing retributive pressure from the community,

often based on perceptions of the breakdown of society, rising crime levels and the need

for tougher sanctions to counteract this.112 Potent elements in this process are violent

crimes which attract substantial media attention, marginalising due process and

distorting the debate.113

This study revealed that judges were aware of the community’s punitive feelings on

these issues, and felt under pressure to act accordingly. Mentioned also was the

perception that the community was seeking retribution, which sometimes bordered on

revenge.

4 .3 Section 9(1 )(a) in practice

Only two judges from the study commented on the practical use of s 9(l)(a):

Punishment (s 9(1 )(a)) should always be considered, unless the offence is very

trivial.114

The other was judge A, who did not elaborate beyond saying that s 9(l)(a) is always

relevant.

Judge X.

Fox and Freiberg, above n 8 , 205; Russell Hogg and David Brown, Rethinking Law and Order, Pluto Press, Annandale, 1998, chapter 2 generally; George Zdenkowski, “Sentencing Trends: Past, Present and Prospective” in Duncan Chappell and Paul Wilson (eds), Crime and theCriminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000, 184.Zdenkowski, “Sentencing Trends: Past, Present and Prospective” (ibid), 185. See also further discussion on law and order in chapter 7.Judge F.

317

Although the concept of retribution in all its forms attracted considerable comment (as

can be seen above), its manifestation in s 9(1 )(a) did not. Compared with the number of

judges in the study who discussed retribution, very few discussed s 9(1 )(a) of the Act; in

fact it was this sentencing purpose which was referred to the least. A tentative

conclusion to be drawn from this could be that retribution, or at least the concept of just

deserts, does not figure largely in the thinking of the judges. On the other hand, it is

possible that desert is considered to be one of the major sentencing purposes, but that it

is not expressed as such, nor perceived to be included in s 9(l)(a), as can be seen by

many of the comments above. The overall impression given by responses to the study

was that while the community and the media were clamouring for primarily retributive

sentences; the judges were, at least as identified by themselves, holding steadfast against

the tide of public opinion.

5 Section 9(1 )(b) - rehabilitation

(b) to provide conditions in the court’s order that the court considers will

help the offender to be rehabilitated

5.1 Introduction

Section 9(1 )(b) provides for the rehabilitation of the offender, however restricts the

operation of this to conditions in the order of the court. As one judge pointed out:

What the legislation has done is to set out in s 9(1) the specific words, and that

can be quite restrictive. For example, s 9(1 )(b) which provides for

rehabilitation, is quite specific, and reads as follows: “to provide conditions in

the court’s order that the court considers will help the offender to be

rehabilitated”. These provisions are too structured.115

115 Judge EE.

318

Rehabilitation is a forward-looking utilitarian justification for punishment which aims to

reform or cure an offender of their criminal behaviour. The Act provides several

different types of community based correction orders which have as their primary goal

rehabilitation. These include community service orders, probation orders, and intensive

corrective correction orders. Imprisonment is also occasionally seen as rehabilitatory.116

Although popular in the first half of the twentieth century, the goal of rehabilitation

suffered a decline in popularity in the 1970s. Francis Allen argued that the

rehabilitative ideal has been in decline since the years immediately preceding World

War n .117 * Some have attributed at least part of the reason for the decline of faith in

rehabilitation to research published in the 1970s concluding that rehabilitation schemes

had no effect on recidivism rates. Results of a major two-year study of rehabilitation

in the United States published in 1979 produced disappointing conclusions on its

efficacy. In the summary of results, the authors stated:

The entire body of research appears to justify only the conclusion that we do not

now know of any program or method of rehabilitation that could be guaranteed

to reduce the criminal activity of released offenders.119

Allen identified three principal reasons for criticism of rehabilitation; firstly that

rehabilitation constituted a threat to the political values of free societies; secondly that it

w'as vulnerable to debasement and serving of unintended social ends; and thirdly that a

rehabilitative technique is lacking by which recidivism could be effectively

presented.120 In 1981, Allen predicted (probably correctly) that in the remaining years

See comments on this in chapter 5 at 6.2.Francis Allen, “The Decline of the Rehabilitative Ideal” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Punishment, 2nd ed, Hart Publishing, Oxford, 1998. See also discussion in chapter 1 at 5.2.W Clifford, “What Works in Criminal Justice” (1982) No 52 Proceedings o f the Institute o f Criminology 11, 11, citing Robert Martinson, “What Works? Questions and Answers About Prison Reform” (1974) 35 The Public Interest 22. See also now Rick Sarre, “Beyond ‘What Works?’ A 25-Year Jubilee Retrospective of Robert Martinson’s Famous Article” (2001) 34 The Australian and New Zealand Journal o f Criminology 38.Lee Sechrest, Susan White and Elizabeth Brown (eds), The Rehabilitation o f Criminal Offenders: Problems and Prospects, National Academy of Sciences, Washington, 1979, 3.Allen, above n 117, 14-15.

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of the twentieth century, penal rehabilitationism was likely to be peripheral rather than

central to the administration of criminal justice.121

Andrew Von Hirsch and Lisa Maher note that showing success in rehabilitation is

problematic.122 They state that rehabilitation programs that succeed tend to be “well

funded, well staffed, and vigorously implemented”.123 * * There is little doubt however that

the concept of rehabilitation, with its accompanying obligation on the state to take

responsibility for offenders and their eventual re-assimilation into society, still has many

supporters, and is represented by community based and supervisory sentencing

options which are present in every Australian jurisdiction. Research continues into

risk prediction and recidivism, and community based sentencing options are likely to

have ongoing popularity.126

5.2 Use of rehabilitation in sentencing

Rehabilitation had wide acceptance as a sentencing aim amongst judges in this study.

This was particularly so in relation to sentencing young people, and certain classes of

offenders, such as those with drug or alcohol problems.

Thirteen judges in all discussed the importance of rehabilitation as a sentencing

purpose.

Ibid 18.Andrew von Hirsch and Lisa Maher, “Should Penal Rehabilitationism Be Revived?” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998, 27.Ibid 28.See for example, Francis Cullen and Karen Gilbert, “Reaffirming Rehabilitation” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998.See eg, Penalties and Sentences Act 1992 (Qld) Parts 5-7; Sentencing Act 1991 (Vic) Part 3, Division 3; Sentencing Act 1995 (NT) Part 3, Division 4.

As to recent Australian research into risk prediction and recidivism, see Andrew Cumberland and Gregory Boyle, “Psychometric Predictions of Recidivism: Utility of the Risk Needs Inventory” (1997) 30 The Australian and New Zealand Journal o f Criminology 72; and R G Broadhurst and R A Mailer, “The Recidivism of Prisoners Released for the First Time: Reconsidering the Effectiveness Question” (1990) 23 The Australian and New Zealand Journal o f Criminology 8 8 . See also a report of New Zealand research on effectiveness and recidivism in rehabilitative orders: Kaye McLaren, Reducing Reoffending: What Works Now, Penal Division, Department of Justice, Wellington, NZ, 1992.

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1 97

Rehabilitation will generally be a factor that is both in the interests of the

community and in the interests of the offender. .. .The rehabilitative aspect of

sentencing is very important because, in almost all cases, sooner or later

prisoners will be released into the community. Rehabilitation is therefore

important, not just for the offender but for the community. Other factors also

have to be taken in account in reaching the appropriate sentence. In some cases,

for example, with recidivist serious violent offenders, considerations such as

rehabilitation will carry less weight. ...Rehabilitation (s 9(1 )(b)) should be

considered unless the offence is too serious or the facts suggest there is no real

prospect of rehabilitation.128

I think the government should introduce compulsory drug and alcohol

rehabilitation services, so that we as judges could order such options. It is

frustrating that the community thinks we have unlimited power when we don’t.

...With alcohol and drug offenders rehabilitation is important. I don’t have any129set ideas on this however.

Rehabilitation - I use this where it is relevant, sometimes it is, sometimes it’s

not. This might also apply if the prisoner is getting a prison sentence and I am

recommending he or she has early release on parole. It might also apply if the

person has benefited from the previous jail term.130

Rehabilitation however can also be paramount in the process.... Frequently

rehabilitation is the paramount factor I am taking into account.131

You apply s 9(l)(b) rehabilitation if you can.132

R e h a b i l i t a t io n is a ls o an im p o r ta n t s e n te n c in g a im .

127

128

129

130

Judge D. Judge F. Judge E. Judge A.

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Most judges would have five goes at giving someone a chance to rehabilitate

before sending them to jail, unless of course the offence was of a sexual nature

or violent. This links to what the public is saying, and a lot of this is hysterical

with often no appreciation of what the background of it is. It is in the interest of

politicians to feed this debate, but I don’t think it furthers the debate of law and

order very far.lj3

I put a strong emphasis on rehabilitation - being in jail must be terrible. What do

you do as a judge? The public is entitled to be protected - they expect the judge

to deal with the violent offender in a severe way.134

Eventually the person has to get out of jail and it is important for them and also

to society to have them rehabilitated. Society is cutting off its nose to spite its

face if it does anything other than rehabilitate as soon as possible, that is, fairly

to defeat the loss of self-respect. Society would save itself an enormous amount135of money if it did so.

These comments reflect a strong emphasis on rehabilitation as a sentencing goal among

the judges. Rehabilitation was also seen in these comments as linked with protection of

the community, because rehabilitation of offenders was seen to be in the interests of all,

as in most cases an offender sent to jail will be released back into the community.

Where rehabilitation was seen to be the most important however was with young people

who were before the courts.

5.3 Rehabilitation and young people

Rehabilitation was seen by a number of judges to be a primary sentencing goal for

young offenders before the court.

Judge I. Judge P. Judge BB. Judge EE.

322

With young people I would favour rehabilitation.136

I try to give them a chance though, particularly with young people. They need

to understand however that when they ignore the chances given to them that

something reasonably substantial will be handed down sooner or later. I try to

make it clear that if they do not change their behaviour there will be a1 ̂ 7consequence for them.

Section 9(l)(b) rehabilitation is one that exercises judges’ minds a lot,

particularly in the Court of Appeal and with young offenders.138

The most significant purpose for sentencing for youthful offenders is

rehabilitation.139

Society accepts rehabilitation for young offenders.140

The use of rehabilitation for young offenders is compatible with the approach taken by

the Queensland Court of Appeal, which has consistently held that youthful offenders

should be dealt with more leniently as they have a greater chance of rehabilitation.141 It

is also an approach more likely be accepted by the community in general, as alluded to

by one judge above.

135

136

137

138

139

140

Judge X.Judge G.Judge J.Judge V.Judge AA.Judge CC.See eg, Hammond (1996) 92 A Crim R 450, 467 (judgment of the Court).141

323

The issue of rehabilitation becomes more difficult with offenders who have alcohol and

drug addiction problems. While rehabilitation is still a factor, these offenders were seen

by the judges as having special needs in relation to treatment programs.

I think the government should introduce compulsory drug and alcohol

rehabilitation services, so that we as judges could order such options. It is

frustrating that the community thinks we have unlimited power when we don’t.

...with alcohol and drug offenders, rehabilitation is important. I don’t have any

set ideas on this however.142

Rehabilitation has a role for example with drug offenders where there has been

an external manifestation of their desire to rehabilitate. This could be difficult to

show with other types of offenders for example [persons who commit] assaults,

unless for example there has been a counselling process prior to sentence.143

With a person who is a drug addict who is committing crime, I would give a

rehabilitative sentence if I could.144

In the case of drug offenders, they may enrol in a drug rehabilitation program for

example before the sentence takes place. The judge can then look for a report

from that institution before the sentence takes place. It may be very important

then as part of their rehabilitation to keep them out of jail for rehabilitative

purposes. This would however contrast with a trafficker in drugs who may have

to go to jail, especially as a deterrent to others.145

5.4 Rehabilitation and alcohol and drug offenders

Judge E. Judge K. Judge Q. Judge K.

324

Generally in Queensland, drug and alcohol addiction has not been seen as mitigatory on

sentence.146 There was a slight softening of this approach evident in the case of

Hammond in 1996,147 where the Court of Appeal held that drug addiction may be an

explanatory factor on sentence; in that it may tell the court that the real weakness of

character was of a drug addict, and not, as was the case in Hammond, a robber. It is

significant however that the court also took the opportunity to note that drug addiction

may be a two-edged sword, in that it may tell the court that rehabilitation was going to

be difficult.149

The comments made in relation to rehabilitation for alcohol or drug offenders are not

inconsistent with Court of Appeal decisions; as by stating that rehabilitation services

should be available, this does not necessarily advocate dealing with such offenders

leniently. The third judge above, who stated that he or she would give a rehabilitative

sentence if they could, is probably referring to a common practice of the Court to

sentence young offenders on less serious charges, for whom there was hope of

rehabilitation, to sentences of probation (or perhaps community service) where• . 150appropriate.

In mid 2000, Queensland began a trial of drug courts.151 These operate in Queensland

only in the Magistrates Court jurisdiction, but give offenders the opportunity of a

diversionary program. If successful, and if introduced into other levels of courts, the

aims of the legislation, which include reducing drug dependency and associated

criminal activity, would be significant in the sentencing of such offenders.

146

147

148

149

150

151

152

153

See R v Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677.(1996) 92 A Grim R 450.Ibid 455.Ibid.Hammond (1996) 92 A Crim R 450; Taylor and Napatali (1999) 106 A Crim R 578.See Drug Rehabilitation (Court Diversion) Act 2000 (Qld). See also G L Davies and K M Raymond, “Do Current Sentencing Practices Work?” (2000) 24 Criminal Law Journal 236, 245.See s 3 Drug Rehabilitation ( Court Diversion) Act 2000 (Qld).See also Arie Freiberg, “Australian Drug Courts” (2000) 24 Criminal I m w Journal 213, where the operation of drug courts in a number of Australian jurisdictions is discussed.

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Many judges in the study spoke about rehabilitation in relation to sentencing options.154

With respect to rehabilitation, jail really has no effect on an offender’s

rehabilitation.155

There is a futility in putting someone in prison, as I know it isn’t necessarily

going to stop or rehabilitate them. Often there is really not an alternative.156

It is frustrating that there is lack of knowledge by the judge, and reassurance that

there is genuine rehabilitation in prison.157

Jail doesn’t rehabilitate offenders. Judges don’t want to put people in jail unless

we have to. I have visited prisons in various capacities before becoming a judge,

and I know what the atmosphere is like. Sending somebody to prison is not158something I do lightly.

Rehabilitation m s 9(1 )(b) is part of the consideration of the personal

circumstances of the offender, and also relates to s 9(2)(a) which states that jail

is a last resort. This also has an impact on protection of society as well, because

if you can stop people re-offending, it is in society’s long term interest. Keeping

them out of jail is better than “rehabilitation” in jail. It is exceptional to have

any rehabilitation in jail.159

On the other hand, some judges (including one who said above that prison was not

rehabilitative) said that sometimes it could have that effect:

5.5 Rehabilitation and sentencing options

154

155

156

157

158

See also discussion on sentencing options in chapter 5. Judge B.Judge J.Judge P.Judge T.Judge Y.159

326

Rehabilitation is a great idea and goes back a long way, in fact as far back as

Plato. The idea of reforming is as old as the Greeks. I have travelled a lot and

visited prisons which can provide rehabilitation; two in Switzerland and one in

Italy. Prison does of itself have a rehabilitative effect, because people don’t

want to go back. In Switzerland, a prisoner is paid wages and can contract out

for jobs etc. The system works well. If you mix the incorrigible into the prison

system, you will find yourself with many recidivists to blow out the crime

statistics.160

I know that it is said that prison does not do anything to rehabilitate. On the

other hand I have quite often heard it said that after somebody has served a term

in prison they never ever want to go back and therefore this (deterrence) may be

regarded as a form of rehabilitation.

Apart from deterrence, I am not confident about the extent you otherwise

rehabilitate somebody in prison. Courses are available in prison. Sometimes

just taking somebody out of the community gives them a chance to stand back

and look at themselves and the life they have been living. Sometimes a short

term of imprisonment can work to have a rehabilitative effect. Other times they

may just become resentful.161

What these two judges appear to be talking about is individual deterrence, where the

experience in prison deters the offender from committing further crimes, rather than

rehabilitation itself. The second judge in fact notes that he or she is not confident about

rehabilitation in prison. Neither of these judges was thus talking about rehabilitation in

the true sense of the word, and it can therefore be said that there was little or no support

for prison as a rehabilitative experience in itself in this study.

Community based orders were however seen as rehabilitatory in nature:

160161

Judge S. Judge J.

327

Rehabilitation will usually involve a sentence such as probation and / or

community service or an intensive correction order.162

Sometimes it is possible to give a sentence such as an intensive correction order

to enable rehabilitation programs to continue.163

Although there was considerable support for rehabilitation, its implementation was seen

by the judges as a function of a community-based sentence, rather than a jail

sentence.164 Prison was seen as a sentence that did little for the offender’s chances of

rehabilitation, in fact probably produced the opposite effect. A recurring theme was the

judges’ belief that drugs were freely available in prisons, and the fact that the brutality

of prison would serve to reinforce and intensify criminal behaviour, rather than have a

reformatory effect. The judges tended to see prison as a last resort. This view is

consistent with s 9(2)(a) Penalties and Sentences Act 1992 (Qld), which states that a

sentence of imprisonment should only be imposed as a last resort, and that a sentence

that allows the offender to stay in the community is preferable.165

5.6 Thinking ahead to the effect of the sen ten ce

Some of the judges expressed a utilitarian view on the role of a sentence, seeing it as a

positive tool to aid the rehabilitation of the offender. This was seen as “designing for

the future” and other similar concepts.

In sentencing, I like to give emphasis to what is going to happen in the future.

Being retrospective is pointless as a sentence usually takes place so long after

Judge J.Judge P.

This is (at least tentatively) borne out by the research. A recent study comparing the effect of community service, and short periods of imprisonment concluded that there were indications that alternatives to prison such as community service reduced recidivism more than imprisonment: Martin Killias, Marcelo Aebi and Denis Ribeaud, “Does Community Service Rehabilitate better than Short-term Imprisonment?: Results of a Controlled Experiment” (2000) 39 The Howard Journal 40, 53. That study also found however that short-term imprisonment did not seem to increase criminality.Since 1997 this is subject to s 9(3) in the case of offenders who are sentenced for offences involving the use of violence toward another person, or that resulted in physical harm to anther person. Section 9(3) states that s 9(2)(a) does not apply in the case of those offenders.

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the offence. .. .1 like to see the process as designing for the future so they won’t

re-offend.166

I see the purpose of the sentence as to punish offenders and to look to the future.

You can’t undo what has already happened, and you can’t double the tragedy.

There is a wide range of sentences available.167

An article that I once read by an English psychiatrist who had a lot to do with

criminals said that some people, no matter how hard you try to rehabilitate them,

will re-offend. Many convicted persons will re-offend. Obviously some will

come good. Milliner, when Attorney-General, said that 47% of persons who1went to jail will re-offend.

It would be interesting to know the extent to which people who have a criminal

history can turn the comer.169

Acceptance of the sentence is critical to rehabilitation; if the person does not170accept their sentence, then their chances of rehabilitation will be reduced.

When sentencing I try to build the person’s self esteem and say to them things

like “you don’t look as though you’re the sort of person to do this”. I try to look

at them as individual persons rather than as sausages lined up in a sausage

factory.171

These comments reveal a thoughtful approach to rehabilitation and forward-looking

sentencing aims, and demonstrate that some of the judges are attempting to consider the

impact of the sentence on the offender, and also society in general.

166

167

168

169

170

Judge B.Judge I.Judge EE.Judge W.Judge X.Judge X. See also chapter 4 at 8.8.171

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In summary, the study revealed strong support for rehabilitation as a sentencing aim,

particularly in relation to young offenders for whom there were seen to be prospects of

future behavioural change. Rehabilitation as a sentencing aim appeared to be clearly

understood (in contrast to just deserts and denunciation), and well utilised. What also

appeared to contribute to its popularity was the fact that rehabilitation was perceived as

being not only important for the offender, but also the community as a whole. This

finding coincides with that of a study by David Indermaur of offender’s perceptions,

where it was found that there was a tendency on the part of offenders to see the purpose

of a sentence as rehabilitation. Indermaur noted also the tendency of judges to favour

rehabilitation, and coupled with defence counsel presenting a similar view, there was

the possibility of an unintended collusion which emphasised the needs of the

offender.* 173

None of the judges in the present study expressed negative views on rehabilitation, in

contrast to deterrence, and in particular general deterrence, which is discussed below.

6 Section 9(1 )(c) - deterrence

6.1 Introduction

Deterrence is a utilitarian sentencing aim which has endured in popularity over the past

two centuries. The basis of deterrence is a forward-looking effect on future offending

behaviour, not backward-looking such as just deserts. For some advocates of its use, it

is the “principal aim of criminal sanctions”.174 It is a forward-looking sentencing aim

which operates as an inducement, and relies for its efficacy on threats and fear of the

David Indermaur, “Offenders’ Perceptions of Sentencing” (1994) 29 Australian Psychologist 140, 143.

173 Ibid.174 Franklin Zimring and Gordon Hawkins, Deterrence: The Legal Threat in Crime Control, The

University of Chicago Press, Chicago, 1973, xi. See also Mirko Bagaric, “Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?” (2000) 24 Criminal Law Journal 21, where it is argued that general deterrence should be reinstated as a primary sentencing goal.

330

consequences of offending.175 Promoting as it does the utilitarian goal of crime

prevention,176 it seeks to deter the offenders themselves from further offending

behaviour (individual or special deterrence), and secondly seeks to deter potential

offenders from committing like offences (general deterrence).

The theory of general deterrence largely stems from the writings of Jeremy Bentham

who looked at offending in terms of choice:

Pain and pleasure are the great springs of human action. When a man perceives

or supposes pain to be the consequence of an act, he is acted upon in such a

manner as tends, with a certain force, to withdraw him, as it were, from the

commission of that act. If the apparent magnitude of that pain be greater than

the apparent magnitude of the pleasure or good he expects to be the consequence

of the act, he will be absolutely prevented from performing it. The mischief

which would have ensued from the act, if performed, will also by that means be

prevented.177

Ore of the judges in the present study expressed similar views:

The certainty of punishment is important. Contrast this however in cases where

they don’t really think about it before they do the crime. Crime and punishment

is a matter of choice.178

Deterrence theory, particularly general deterrence, is susceptible to criticism on the

basis that it can punish the offender before the court undeservedly severely in order to

de:er others, and it assumes that previous sentences are widely and accurately publicised

Ashworth, Sentencing and Criminal Justice, above n 21, 62; Andrew von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis o f Recent Research, Hart Publishing, Oxford, 1999, 5.

Andrew Ashworth, “Deterrence” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998, 44.Jeremy Bentham, “Punishment and Deterrence” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998, 53 (From “The Principles of Penal Law”, in The Works o f Jeremy Bentham (J Bowring ed 1838-43), 396).Judge M.17S

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and are known. In addition, deterrence may only have an effect on certain socio­

economic groups (who may not have offended in any case), or certain offences which

are pre-planned, and it may only have effect if there is a high probability or certainty of

being caught. Reliable evidence on the effectiveness of general deterrence on

particular offenders and particular offences is said to be lacking.180 * Deterrence may

have intuitive appeal, but this does not necessarily translate into its practicalI o 1

application.

Deterrence, linked also with rational choice theory,182 continues to generate spirited

discussion in the literature.183 Deterrence continues to have popularity with the

legislators, however its use has increasingly been subject to scrutiny. The courts

Studies have found that the certainty of punishment has a stronger deterrent effect than severity: see von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis o f Recent Research, above n 175, 5.Deryck Beyleveld, “Deterrence Research as a Basis for Deterrence Policies” (1979) 18 The Howard Journal 135, 136; also published as Deryk Beyleveld, “Deterrence Research and Deterrence Policies” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998, at 67.Ashworth, “Deterrence” , above n 176, 48.See eg, Ronald Akers, “Rational Choice, Deterrence, and Social Learning Theory in Criminology: The Path Not Taken” (1990) 81 Journal o f Criminal Law and Criminology 653; Richard Posner, “Optimal Sanctions: Any Upper Limits” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998; Raymond Paternoster et al, “Perceived Risk and Deterrence: Methodological Artifacts in Perceptual Deterrence Research” 73 Journal o f Criminal Law and Criminology 1238; Raymond Paternoster et al, “Estimating Perpetual Stability and Deterrent Effects: The Role of Perceived Legal Punishment in the Inhibition of Criminal Involvement” (1983) 74 The Journal o f Criminal Law and Criminology 270; Raymond Paternoster, “Examining Three-Wave Deterrence Models: A Question of Temporal Order and Specification” (1988) 79 Journal o f Criminal Law and Criminology 135; Llad Phillips and Harold Votey, “An Economic Analysis of the Deterrent Effect of Law Enforcement on Criminal Activity” (1972) 63 The Journal o f Criminal Law Criminology and Police Science 330.See eg, J L Miller and Andy Anderson, “Updating the Deterrence Doctrine” (1986) 77 Journal o f Criminal Law and Criminology 418; Charles Thomas and Donna Bishop, “The Effect of Formal and Informal Sanctions on Delinquency: A Longitudinal Comparison of Labeling and Deterrence Theories” (1984) 75 Journal o f Criminal Law and Criminology 1222; Steven Shavell, “Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent” (1985) 85 Columbia Law Review 1232; Scott Decker and Barbara Salert, “Predicting the Career Criminal: An Empirical Test of the Greenwood Scale” (1986) 77 Journal o f Criminal Law and Criminology 215; Donald Green, “Past Behavior as a Measure of Actual Behavior: An Unresolved Issue in Perceptual Deterrence Research” (1989) 80 Journal o f Criminal Law and Criminology 781; Harold Grasmick, “The Strategy of Deterrence Research: A Reply to Greenberg” (1981) 72 Journal o f Criminal Law and Criminology 1102.Witness for example its prominence in Queensland and Victoria in s 9(l)(c) Penalties and Sentences Act 1992 (Qld) and s 5(l)(b) Sentencing Act 1991 (Victoria).

3 3 2

continue to apply deterrence enthusiastically,186 a notable example being the fact that

even though s 16A of the Crimes Act 1914 (Cth) does not specifically refer to general

deterrence, the courts have read that requirement into the section.187 *

While the use of deterrence as a sentencing purpose has lost popularity in the literature,

this should be contrasted with the position of the criminal justice system as a whole,1 OQ

which acts as a deterrent to offending in general. Thus, according to Ashworth:

... one fundamental justification for the institution of state punishment is that it

exerts this overall restraining effect: it deters many offences which would be

committed if there were no such institution. Thus, an advocate of proportionate

sanctions - who seeks fairer principles for the distribution of punishments and

for the calculation of punishments than general deterrence can offer - may still

accept general deterrence as an integral part of the justification for why the

institution of legal punishment should exist.189

6 .2 O p in io n s on d e te rre n c e

Judicial opinions in the study overall displayed an overriding cynicism about deterrence,

balanced with an obligation to employ deterrence because it is in the legislation, and

other reasons such as perceived pressure from the Court of Appeal.

Two judges were of the opinion that deterrence was a primary goal in sentencing:

I often refer to deterrence as a paramount purpose of sentencing.190

See eg, Roderic Broadhurst and Nini Loh, “The Phantom o f Deterrence: The Crime (Serious and Repeat Offenders) Sentencing Act” (1993) 26 The Australian and New Zealand Journal of Criminology 251.

Fox and Freiberg, above n 8, 207.

See DPP v El Karhani (1990) 21 NSWLR 370; R v Sinclair (1990) 51 A Crim R 418 (CCA W A). This is also despite a specific recommendation by the Australian Law Reform Commission that general deterrence be excluded: ALRC 44, above n 16, 18; and further the implementation of this recommendation in s 16A Crimes Act 1914 (Cth).

See ALRC 44, above n 16, 18.

Ashworth, “Deterrence” , above n 176, 51 (reference omitted).

Judge I.1 90

333

A sentence is given to punish an offender but I think that deterrence is the

primary purpose of sentencing the person and punishment is second.

Rehabilitation comes third. Deterrence is first, because socially deterrence is the

most important purpose for sentencing. The concept of punishment is the

vengeance thing. Society feels better if a person is made to pay. What’s the

value in punishing someone without deterrence? Perhaps the philosophical basis

of punishment is that it makes us feel better. Where is the social value in

vengeance?191

Other judges expressed scepticism about deterrence:

I am personally a little cynical about deterrence generally, but it doesn’t mean

that you shouldn’t give a person a deterrent sentence merely because you don’t

know that it will have that effect. If a person is engaging in socially destructive

behaviour then deterrence may be appropriate.192 *

Deterrence is such an overrated factor in the sentencing process. When I was at

the Bar I never had a client who expected to be caught, or otherwise they were

acting irrationally for example, angry or drunk. They don’t stop and think about

the possibility of six months’ imprisonment as a result of their actions. Others

thought that they were too smart to be caught, and that others would be caught

and not them.

193Deterrence has to be failing as the prison population is increasing.

There are two aspects of deterrence, public and personal. The difficulty is that it

too leads us to set penalties which are part of “the range”, for no rational reason.

There is one big flaw which is “Act adequate sentencing”.194

191

1 92

193

194

Judge X.

Judge A.

Judge CC

Judge S.

3 3 4

Deterrence is problematical. I think people usually don’t give much thought

when committing offences; it seems to be an occupational hazard if they get

caught, one of the risks of the business. A lot of offences we deal with in the

Supreme Court are violent offences which arise when people don’t give much

thought to consequences. Therefore the notion of deterrence doesn’t have much

impact.195

Deterrence only works with some offenders but it can backfire.196

Things that I have to say I don’t necessarily believe myself, for example that

deterrence works. ...W e seem to be stuck with the concept of deterrence even

though I don’t agree with it.197 * *

Generally deterrence is a fiction which makes it easy to get heavy on crime.

Some judges rely on it as a reason to give heavy sentences but really they should

be looking at the seriousness of the offence. There are comments to this effect

by Dowsett J in R v Ryan and Vosmaer; Ex Parte Attorney-General.198 199

Some comments focussed on how deterrence is taken into account:

I take deterrence into account in a general sense. People generally know that it

is wrong to disobey the law and expect to be punished. People generally know

that you would expect to go to jail with, for example, crimes of violence.

...Sentencing can send a message to people but it may not necessarily have a

deterrent effect.200

195

196

197

198

1 99

Judge V.

Judge B.

Judge U.

[1989] 1 Q dR 188.

Judge Y.

Judge D.200

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It is easy to take the softer option but one has to have regard to the deterrent

aspect of the sentence more particularly to determine whether it would serve any

useful purpose having considered that to send someone to jail.201

Deterrence is always a relevant consideration, but on a scale from 1 to 10,

probably over the years in individual sentences I would score each level from 1

to 10.202 *

I always consider deterrence although sometimes it is not appropriate. ...if I

impose a prison sentence, I would usually say that I am doing that for the20̂

purpose of deterrence.

Deterrence is certainly something that is referred to in sentencing.204 *

I take into account both types of deterrence depending upon the individual205circumstances.

Of all the purposes for sentencing discussed in the interviews for this study, deterrence

generated the most interest among the judges, with some of the view that it was the

primary purpose of sentencing. Generally however, deterrence was not looked upon

with favour as a sentencing purpose, although a number of judges stated that they felt

under pressure to use it, although they did not agree with it personally.

For many judges, general deterrence was thought to be inappropriate, however some of

these judges then went on to give examples of cases where general deterrence would be

appropriate in their opinion.206 Significantly, there was little agreement between the

judges on which offences should attract a deterrent sentence, and few judges discussed

why they imposed deterrent sentences.

2012022 0 3

2 0 4

2 0 5

Judge L.

Judge DD.

Judge J.

Judge K.

Judge N.

See 6.3.2, below.206

336

Many of the judges interviewed did not differentiate between general and individual

deterrence, preferring to speak generally of “deterrence” and “deterrent sentences”.

This could mean that they use the term “deterrence” for both concepts and do not

differentiate between the two. Alternatively, it could mean (and probably did), in a

number of cases that they were in fact referring to general deterrence. It could also

point to a lack of understanding in some cases of the difference between two types of

deterrence, with some resultant confusion. It is not unusual however to refer to207“deterrence” meaning both types.

6.2.1 W here deterrence is justified

Some judges specified cases where they considered the use of deterrence to be justified:

I don’t know that deterrence does anything for people who commit offences in

the heat of the moment. They don’t think of the consequences before they act.

But I do think that deterrence for premeditated and deliberate offences should

have an effect; but it doesn’t seem to, as property offences are on the increase.

Deterrence is most important with premeditated offences such as break and

enters, which cost the community so much money including increasing

insurance premiums.208

I might emphasise deterrence for people who are heavy repeat offenders.209

Another judge stated that the use of deterrence normally dictated a prison sentence:

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2 0 8

See eg the report of the Victoria Sentencing Committee, which briefly defined both types of deterrence then did not differentiate between the two when discussing deterrence theory: Victorian Sentencing Committee Report, above n 93, 64.

Judge EE.

Judge G.2 0 9

3 3 7

If I am sentencing with deterrence in mind, I would usually impose a prison

term. That is not to say that other sentences such as probation and community

service cannot act as a deterrent.210

It should be noted however that in the case of heavy repeat offenders, deterrence is by

definition hardly appropriate as the previous criminal history of such offenders may

suggest that there has been little deterrent effect in the past.

6.2.2 W here use of deterrence is not justified

A number of broad categories were nominated where the judges felt that deterrence was

nor justified:

I would question how effective is deterrence particularly if the offender has been

affected by drugs or alcohol. Sentencing can send a message to people but it

may not necessarily have a deterrent effect.211

If a drug addict is a genuine addict, deterrence would often be trivial and212hopeless.

With offences which are committed when a person is drunk, deterrence is

pointless. The certainty of being caught is the greatest deterrent. With offences213caused by alcohol, drugs or gambling, the addiction compels them to offend.

210211212213

Judge J.

Judge D.

Judge G.

Judge CC

338

The exercise of the aim of deterrence is dependent on the nature of the offence,

for example killing under provocation doesn’t lend itself to deterrence because

of the nature of that partial defence.214

I temper the punishment where there are prospects of rehabilitation, and increase

it where there is clearly the need of a deterrent effect. It is difficult to determine

however what that deterrent effect is, or, if there is any, particularly in some

types of cases. Where there has been no premeditation, in cases concerning for

example family violence, it is difficult to say whether deterrence has any effect.

Where there has been no premeditation however, the deterrent effect would be

minimal.215

The types of charges cited by the judges where deterrence would not be appropriate

included, appropriately, killing under provocation and family violence cases, in other

words, offences likely to be committed on the spur of the moment. In these instances

the offence may not have been premeditated, and may therefore not be appropriate for

the use of general deterrence. Also mentioned however were offences where the

offender was affected by drugs or alcohol. Again, the inference here was that the

offence was not premeditated.

6.2.3 Deterrence and other purposes of sentencing

Two judges identified links between deterrence and other purposes of sentencing.

Punishment and denunciation go together; this is why you sentence someone and

that is the validation for the victim.

Deterring a particular person can also be part of the rehabilitation for that

person, it is the issue of the carrot and the stick.216

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215Judge K.

Judge D.

339

Deterrence can be important to deter other offenders. This can also be linked217with protection. The system caters quite well for the incorrigible offender.

These two judges were of the view that deterrence may be effective in combination with

other sentencing rationales, and were therefore supportive of the use of deterrence in

sentencing.

This discussion on the use of deterrence by the judges revealed endorsement for the

notion of deterrence generally, with qualifications for that support in cases where it was

seen to be inappropriate. The next section looks specifically at general deterrence, and

the judges’ comments on this sentencing rationale.

6 .3 G e n e ra l d e te rre n c e

6 .4 In tro d u c tio n

According to Fox and Freiberg,

General deterrence aims to discourage potential offenders. This objective hopes

the sanction will demonstrate to prospective offenders the consequences of

violating the law; if persons are persuaded to refrain from crime, public

protection is enhanced.218

General deterrence has been subjected to criticism as a sentencing purpose, and was

specifically excluded from the purposes contained in the Crimes Act 1914 (Cth) because

of a recommendation of the Australian Law Reform Commission. In a recent

analysis of deterrence research, researchers from the University of Cambridge Institute

of Criminology concluded that deterrence can work in certain circumstances. After

Judge P.

Judge T.

Fox and Freiberg, above n 8, 207.

See recommendation 9, ALRC 44, above n 16, and earlier discussion at 6.1.

Von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research, above n 175.

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reviewing the recent literature, Andrew von Hirsch, Anthony Bottoms, Elizabeth

Burney and P -0 Wikstrom concluded that:

The studies plainly suggest that when potential offenders are made aware of

substantial risks of being punished, many of them are induced to desist. We

share Nagin’s (1998) view that criminal punishment has by now been shown991capable of having deterrent effects.

In relation to severity and deterrence, the researchers concluded, “there is as yet no firm

evidence regarding the extent to which raising severities of punishment would enhance

deterrence of crime.222

Ironically, despite many of the judges in this study stating that they did not believe that

deterrence was a useful sentencing purpose, a number nonetheless gave examples of

cases where they would use general deterrence. The other matter of note was that there

was little agreement between the judges on what categories of offence merited general

deterrence.

6.4.1 C ategories of offences

The following were categories of cases where judges stated that general deterrence was

appropriate:

S exu a l o ffe n ce s , s o c ia l se cu rity f r a u d a n d a bu se o f a p o s it io n o f tru s t

Specific examples I can give are sexual offences, social security fraud, and

abuse of a position of trust. General deterrence is important where people need

to rely on things being done properly.223

Ibid 47. The reference to Nagin is: Daniel Nagin, “Criminal Deterrence Research at the Outset of the Twenty-First Century” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 23, The University of Chicago Press, Chicago, 1998Von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research, above n 175, 52.Judge A.2 2 3

341

In contrast however, another judge pointed out that deterrence might not be successful

with social security fraud cases due to lack of publicity:

With cases of social security fraud, the sentences handed out are fairly heavy but

people in the community don’t know of these sentences.224

M e d ic a r e fra u d , s o l ic i t o r s a n d p o l i c e o f f ic e rs

General deterrence can however work on some people, for example, doctors

who defraud Medicare, solicitors and police officers. It is clearly a significant

factor in those cases, however these are a very small minority of criminal

offences. It is not realistic and often used by judges in a less than honest22*

intellectual manner.

W h ite c o l la r c r im e

Where it [deterrence] might have effect would be in say a white collar crime

where it is used in a calculated way. Contrast this with a drunken youth in a pub

brawl where it would have little effect.226

227Deterrence may have a role in white-collar crime.

There is a role for deterrence in a very limited class of cases, for example in228cases of corporate fraud there may be a genuine deterrent effect.

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2 2 6

2 2 7

Judge B. Judge H. Judge M. Judge CC.

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S e x u a l o ffe n ce s a g a in s t c h ild re n

With many cases of sexual offences committed many years ago that are now

coming before the courts, there is a question about the deterrent effect of a

sentence. It may be not so much deterrence of the offender as general

deterrence; sending a clear community denunciation of that type of behaviour.

What I think will stop such offences occurring is young children being much

more aware. If there is a near certainty that a child will report any such

behaviour an offender is much less likely to take the odds to it.229

C h ild abuse, b a n k ro b b e ry

What is the predominant consideration depends on the facts, for example with

child abuse, or a case of bank robbery, it might be a deterrent sentence.230

A rm e d r o b b e ry

Deterrence is an important factor in sentencing, for example in armed robbery

cases: it is thought that offenders may hear of sentences which have been

imposed in such cases, and be deterred from similar conduct.231

Deterrence is important for example in cases of armed robberies of banks. It is a

question of the circumstances of the offence and the nature and circumstances of

the offender for example a youthful first offender means that rehabilitation is

very significant. Contrast this with a recidivist where there may be community

protection required.232

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2 2 9

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231

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Judge P.

Judge J. Note also this judge’s use of denunciation. Judge Q.Judge F.Judge N.

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Deterrence (s 9(1 )(c)) is often important, for example, armed robbery or stealing

as a servant offences.233

D a n g e ro u s d r iv in g

One of the most important aspects of the sentence is general deterrence and this

is particularly important, for example, in cases of dangerous driving. There may

also be elements of denunciation there too. It is something which is outside of

the control of the offender.234

D r in k d r iv in g

Deterrence does work in relation to offences like drink driving where there is a

combination of a greater likelihood of being caught and greater penalties.235

One area where deterrence is extremely successful is drink driving. People

consciously will not drive because they are deterred from losing their licence.

For deterrence to act at all the sentence has to get publicity, because there is no

point if no-one hears about it.236

Themes emerging from the judge’s statements were various, and did not always fit

within the normal use of deterrence. The most popular category nominated was

offences involving abuse of a position of trust or white collar crime; including doctors,

solicitors, corporate fraud and police officers. Social security fraud was also mentioned

and could come under this category. In all of these cases, the offence would be unlikely

to be committed on the spur of the moment, and offenders may be well aware that what

they were doing was wrong. This doesn’t however guarantee that deterrence would

have an effect. If however the deterrent sentence is being awarded based on an abuse of

Judge F.Judge O.Judge U.Judge AA.

3 4 4

trust, as was suggested by one judge, this would appear to be more suited to a sentence

based on just deserts or denunciation.

The assumption however that white collar crime is more likely to be calculated and pre­

planned, and therefore more susceptible to deterrent influence, has been challenged by

research showing that imprisonment did not have a specific deterrent effect on the

likelihood of re-arrest on a group of 742 white collar offenders over a 126 month follow

up period.237 Although this research relates to specific deterrence only, it suggests that

white-collar offenders may not be as influenced by the threat of sanctions as is often

thought to be the case. The assumptions driving the use of specific deterrence (and

possibly general deterrence) in relation to white-collar crime may not therefore be

useful. Despite this, it appears to have continuing popularity with the judges,

Sexual offences against children were mentioned by two judges. This category of

offence is an unlikely candidate for deterrence due to the nature of these offences where

the offender is unlikely to be motivated to desist based on criminal sanctions. One of

the judges who nominated deterrence as being appropriate for this offence

acknowledged this qualification by stating that it would not be so much the deterrence

of the offender, but as general deterrence to send a “clear community denunciation” of

the behaviour. Although the judges are talking about “sending a message”, which

involves general deterrence, the better description of what is being referred to is

denunciation (which is specifically mentioned in s 9(l)(d)), and perhaps also just

deserts.

Robbery or armed robbery was mentioned by four of the judges to be an appropriate

subject for deterrent sentences. Robbery is the type of offence where heavy jail

sentences are well publicised and generally known. Depending on whether the robbery

was pre-planned and well thought out, deterrence may have some effect in these cases.

It could also be the case however in many robberies that the offence was more

spontaneous, with the threat of sanction not having much or any effect on the offender’s

decision to commit the offence. By analogy, an American study of 105 burglars found

237 David Weisburd, Elin Waring and Ellen Chayet, “Specific Deterrence in a Sample of Offenders Convicted of White-Collar Crimes” (1995) 33 Criminology 587.

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that the offences were typically committed out of “need” (financial or other), which

seemed to have weakened the threat of sanctions and thereby the deterrent effect.238

The offence of dangerous driving was nominated as being subject to possible deterrent

effect by one judge, and drink driving offences by two judges. It is also notable that

dangerous driving was nominated despite the fact that the judge also noted that it was

“outside the control of the offender”, and that it has “elements of denunciation”. While

there would be little argument that it is necessary to set criminal sanctions for dangerous

driving, such offences are by their very nature normally committed without prior

planning, and indeed do not normally require the proof of fault elements such as

intention, or even negligence, as in such cases, the standard of dangerousness in relation

to the driving is normally tested objectively.239 As such, sentencing on the basis of

general deterrence may not be theoretically sustainable.

With the offence of drink driving, again the offence would often be committed without

sensible thought (by definition the offence is committed while the offender is

intoxicated); however there may be stronger arguments for a deterrent sentence for

drink driving rather than the other types of offences. This may however be a general

deterrent effect based on the existence of the sanction itself, rather than the actual

sentences being handed down by the courts, particularly on the basis that most do not

get publicised.

Ashworth points out that there is strong empirical evidence of a general deterrent effect

based on the existence of a punishment structure.240 Thus in the case of drink driving, it

is arguable that it is the existence of the punishment structure which deters many

offenders from committing the offence. It is also arguable that many offenders desist

from offending because of the publicity about the certainty of being caught, rather than

R T Wright and S H Decker, Burglars on the Job: Streetlife and Residential Break-ins, Northeastern University Press, Boston, 1994, noted in von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research, above n 175, 36.See R v McBride [1962] 2 QB 167; R v Coventry (1938) 59 CLR 633. In Queensland it has also been established that some fault must be found on the part of the driver, but this need not amount to deliberate misconduct or recklessness: see R v Webb [1986] 2 Qd R 466, 450.Ashworth, “Deterrence”, above n 176, 51.

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a fear of the actual penalty to be imposed.241 * Added to this are other reasons for

desisting from such behaviours, such as moral grounds. Again, as discussed above, it

is debatable whether the preferable basis of such a sentence should in fact be general

deterrence, when just deserts and denunciation may be more appropriate.

It seems fair to conclude that while the judges were giving examples of cases where

general deterrence may be appropriate, these cases may not in fact be suitable for

general deterrence by their very nature. In most of the instances cited, just deserts or

denunciation were more appropriate bases for the sentence than deterrence. This again

raises the interesting puzzle about the continued enthusiastic use of deterrence by the

judges, despite their intellectual analysis of its faults, and the empirical evidence. The

reasons for this are speculative, but the interviews suggested it may have been due to

familiarity with the concept of the deterrence, perceptions (real or otherwise), that the

public were calling for deterrent sentences, and statements by the Court of Appeal that

were perceived as indicating the appropriateness of deterrence, at least in relation to

certain offences. An analysis of recent decisions by the Court of Appeal which refer to

deterrence reveals a continued use of deterrence as a sentencing purpose, albeit in some

cases which do not appear to be appropriate.243

But note a recent study on the deterrent effect of Random Breath Testing (RBT) in Queensland, which concluded that the threat of being apprehended did not significantly deter drink driving: Scott Baum, “Self-reported Drink Driving and Deterrence” (1999) 32 The Australian and New Zealand Journal of Criminology 247.See Ashworth, “Deterrence” , above n 176, 50.For recent examples of the endorsement of deterrence as a sentencing purpose by the Queensland Court of Appeal; see Amituanai (1995) 78 A Crim R 588 (charge of grievous bodily harm; held need to deter loutish behaviour on the streets); Melano (1994) 75 A Crim R 392 (charge of unlawful wounding; held need for deterrence in relation to violent offences); R v Pesnak [2000] QCA 245 (charge of manslaughter on the basis of criminal negligence by failure to seek medical help during religious fast; held need for substantial custodial sentencing to deter those “who would engage in such irrational and dangerous conduct in the name of spirituality or religion.” ; R v Taylor [2000] QCA 311 (charge of assault occasioning bodily harm; held need for deterrence in cases of domestic violence); R v Greig; ex parte Attorney-General of Queensland [2000] QCA 276 (grievous bodily harm charge a week after a homosexual encounter; general deterrence said to the primary consideration); R v Marabe [2000] QCA 183 (burglary committed while intoxicated; general deterrence said to be especially important in offences of this nature); R v Babsek, [1999] QCA 364 (manslaughter by female partner on termination of relationship; general deterrence said to be an important sentencing objective in these circumstances); R v Rae (unreported, Qld CA, 4 June 1999) (unlawful carnal knowledge of 14 year old, one off case while intoxicated; deterrence said to be an important sentencing consideration); R v Waugh (unreported, Qld CA, 26 February 1999), (charge in relation to bomb hoax where offender had psychiatric disorder; general deterrence said to be the paramount consideration); R v J (unreported, Qld CA, 17 March 1998), (charge of grievous bodily harm and assault occasioning bodily harm involving child abuse by mother suffering behavioural disorder; deterrence held

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6.4.2 Publicity

General deterrence has a strong link with publicity, as without dissemination of the

details of the sentence it can hardly be argued that the sentence before the court is

justifiable on the basis that it will deter others from offending. Likewise, the penalties

for offences must be widely known and be perceived to be a deterrent.244 Comments by

the judges in the study tended to display cynicism as to the efficacy of general

deterrence if potential offenders did not know of the sentence.

The difficulty is that the media doesn’t always report what goes on in court.

There is no point in a judge thundering on about deterrence when nobody will

know about what they are saying. The Court of Appeal says that this is not

material, and we should still give a deterrent sentence.245

In the example of dangerous driving causing death you will often see an upright

person who has acted recklessly, and as a result someone has died or has

suffered grievous bodily harm. Even thought the maximum for this is only

seven years, and applying the law as explained by the Court of Appeal, it is

fairly rare not to see a custodial sentence. This is a perfect example of where the

purpose is not rehabilitation but deterrence of others, but the problem is how

does anyone else ever know about the sentence?246

I would still use general deterrence however even if I thought that I am not being

reported as you don’t know when this will be the case.247

important in offences of this kind); R v Bonner (unreported, Qid CA, 15 October 1997), (grievous bodily harm of business competitor, offender hired to carry out the injuries; held need for deterrence); R v Howard (unreported, Qld CA, 27 August 1997), (bank robbery, held need for deterrence); R v Andrews (unreported, Qld CA, 7 August 1997), (extortion charge, deterrent element said to be a great influence in determining the length of the sentence).Ashworth, “Deterrence” , above n 176, 49.Judge I.Judge Z.Judge A.2 4 7

348

I agree with general deterrence, but what’s the point? If reporters only turn up to

court occasionally then the sentence isn’t going to be reported. Perhaps there

should be a court list that lists all of the sentences. It might also help the public

understand better, because sometimes they think that judges are too light or

heavy. Also with respect to general deterrence, who does it deter? It’s a pity

there’s not more publicity. It’s also a pity that the debate is not well

informed.248

I sentence with deterrence in mind, both to the person and to others. If it is

publicised, then others may feel that they shouldn’t commit a certain offence. It

gets through one way or another, not necessarily through the media. It gets

around enough to have some effect.249 *

General deterrence is a fiction except in very rare circumstances, and also has no

effect if the sentence has not been publicised. If potential offenders don’t know

about other sentences then the concept of general deterrence is ludicrous. How

can offenders know about sentences unless they are being published? Even if I

was published, offenders don’t necessarily read newspapers, or listen to

television. I do have a belief that personal deterrence, if it’s punishment, has a250sound impact so that offenders know if they do it again they’ll go to jail.

With respect to deterrence, Parliament says to apply this (in s 9(1 )(c)), but the

Parliament or the Executive needs to do more to publicise what will happen,

either through education in schools, universities or in the community. Contrast

this with the situation in the eighteenth century, where someone would be sitting

in the stocks and everyone would know about it. The problem is however, that

in many cases, for example an average crime against property where someone

has collected a huge criminal history, the sentence would be too boring to

publish.251

248

249

250

251

Judge C.

Judge X.

Judge Y.

Judge Z.

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If, as is normally the case, the media report cases selectively, there is probably little

chance that a particular case will be reported, and in any event the judges will be

unaware in advance whether or not this will be the case. Even if a case is reported,

there is no guarantee that it will be reported accurately, or in sufficient detail. In

addition, even if all cases which were intended to have a general deterrent effect were

reported, there is no guarantee that reports of these cases would reach the persons for

whom they were intended, that such persons would recall the details, and whether

knowledge of such a sentence would have an effect on their offending behaviour.

Deterrence is a subjective notion, depending on what potential offenders believe to be

the case with respect to certainty and severity of punishment; and how those offenders

evaluate the risk of offending in relation to their own situation.

A number of judges pointed out the futility of general deterrence if matters were not

reported:

I find deterrence pointless as it is completely accidental what is put in the

newspaper. In particular circles, word about previous sentences might spread

around particular types of offenders, but generally I don’t think this would be the253case.

I have stopped talking about general deterrence. I am less and less convinced

that general deterrence is in fact a real factor in deterring anyone. This is based

on modem writing. If you think about general deterrence logically, most people

who commit offences don’t read newspapers. There are studies from America

which show this. The question is, how do they get the knowledge about

offences, because if they don’t get the knowledge, there can’t be a deterrent

effect. I think it is theoretically seriously flawed and quite wrong to suggest that

general deterrence will work on the sort of people who commit crime, who often

Von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research, above n 175,6.

Judge B.

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come from deprived social backgrounds and have serious literacy and

educational deficiencies.254

With respect to deterrence, I have doubts about how effective it is, especially

general deterrence. I use it because it is talked about in the courtroom. Judges

use it to rationalise a higher sentence, although personally I think it has little

effect.255

If offenders have no knowledge of previous sentences, there is no basis for their

subjective belief, and therefore little deterrent effect. This can be contrasted however

with the type of deterrent effect produced by the presence of sanctions themselves.256 *

The comments by the judges above disavowing the deterrent effect by way of publicity

are significant and contrast with statements by some of those judges (and others) that

general deterrence is a useful sentencing purpose. The number of judges making such

comments about the futility of general deterrence if there is no publicity suggests a

reasonably widespread belief among the judiciary that this is the case.

6.4.3 P revalence

Like publicity, prevalence is often linked with general deterrence, with assertions by its

supporters that a prevalent crime requires a deterrent sentence, particularly in order to

deter other potential offenders. The Australian Law Reform Commission was of the

view that individual offenders should be punished only in accordance with the severity

of the offence with which they were charged, and their own culpability for that offence.

Accordingly, the ALRC recommended that prevalence be included in a list of matters

not to be taken into account on sentence.258 The Australian Capital Territory was the

only jurisdiction to have implemented this recommendation, however the provision has

Judge H.Judge M.

Von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research, above n 175, 3.

See eg comments by Burt CJ in R v Peterson [1984] W AR 329, 332. See also discussion o f the links in Ashworth, Sentencing and Criminal Justice. above n 2, 88.

ALRC 44, above n 16, 96-97.2 5 8

351

been repealed.259 * * Under Queensland law, prevalence is specifically mentioned as a

factor to be taken into account in sentencing, and is often linked with general

deterrence as a purpose for sentencing, although the link is not specifically made in

the Queensland legislation.

Offences such as armed robbery were seen to be prevalent by the judges in this study:

Prevalence is something that you would see mentioned fairly often, particularly

in relation to armed robberies. Where there is a perception that the offence is

prevalent, or that the community thinks it is prevalent, it is likely that judges

would emphasise prevalence in their judgements. They might also say that the

community must be protected from conduct of this kind, for example home

invasion. These types of offences and robbery offences seem to be prevalent,

and perhaps this is related to the increase in the use of drugs. Prevalence does

not however mean that they are necessarily on the increase, but they are offences

which we would see before the courts on a consistent basis.262

For many judges, prevalence is something that they would take into account in their

sentencing practices. The link with general deterrence was also frequently made.

If there is a prevalence submission made then that will link to general deterrence.

I don’t impose my own view on this. I will only sentence on the basis of general

deterrence if there has been a submission, either not contradicted or eg supported

by statistics.263

Prevalence would probably lead to a deterrent sentence, and would increase the264range.

The provision was previously contained in s 429B(e) Crimes Act 1900 (ACT).

Section 9(2)(h) Penalties and Sentences Act 1992 (Qld). See also Sentencing Act 1995 (NT ) s 5(2)(g), which is the only other similar provision in Australia.

Section 9 (l)(c ) Penalties and Sentences Act 1992 (Qld).

Judge K.

Judge A.

Judge D.264

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When looking at the offence I take into account prevalence and the impact on

the victims.265 *

I would be more likely to impose a deterrent sentence if there was evidence

before me of prevalence. Such evidence is only rarely given.

Deterrence is the major purpose that I would specifically refer to in sentencing,

and I would do this where an offence is prevalent.267

General deterrence is important and relates to prevalence and the nature of the

crime for example dangerous offences such as armed robbery.268 *

Prevalence is a consideration, for example in break and enter offences. It is

something that people are looking to the courts to do something about. A

counter balance to this is why should someone get a heavier penalty merely

because an offence is prevalent. Another offence might be just as serious but

not so prevalent, thereby may not get as high a sentence. If a judge is sitting in a

provincial city they may feel the need to protect the society more.

The presence of prevalence as a marker for the use of general deterrence raises the issue

of how to establish this factor. There is no mention in the Queensland legislation of

how prevalence is to be assessed. It has been suggested that the factual basis should be

something more solid than hearsay, newspaper reports, or judicial notice.270 The most

popular method cited by the judges in the study for incorporating prevalence was

however by judicial notice. This was particularly so in relation to courts sitting in

regional areas or a specific geographic location. This was seen as a way in which

judges could use their local knowledge to assess the situation in that particular area.

265

266

267

268

269

Judge Y.

Judge F.

Judge I.

Judge N.

Judge O.

Fox and Freiberg, above n 8, 265.270

353

If a court is sentencing in a regional or provincial area, then it can make a

difference. Even in Brisbane, if there is a prevalent offence such as break and

enters by drug offenders, a judge can take judicial notice of something that971everybody knows.

Cases which are prevalent or abhorrent would attract a higher sentence. The

way in which you would assess prevalence would be because you would know

what is coming before the court in large numbers. Examples of this would be

the child abuse cases which are currently before the courts in increasing

numbers. You can only assess prevalence with cases coming before the courts.

Prevalence would probably lead to a deterrent sentence, and would increase the272range.

You know from your own experience from trial and appeal level that something

is becoming more prevalent. Judges became aware very quickly, almost as

quickly as police did, of the drastic increase of the purity of heroin in the streets.

All of a sudden the heroin that we were seeing in the courts increased from

about 10% purity to 60, or 70, or 80% purity and then the court had to recognise

the level of sentencing for 1 oz of heroin at 10% was no longer adequate. The

point is that often without formal evidence of something, the pattern is obvious

and as a consequence the judges adapt their sentencing policies to that.273

I look at issues of prevalence of offences when considering general deterrence.

As a sentencer I see so many offences, and sometimes as sentencers we go out

on a limb where the offence is prevalent. The Crown however very rarely puts

material before us on prevalence. A judge sitting in a provincial city or town is

more aware of the situation in a smaller community.274

Judge M.

Judge D.

Judge DD

Judge I.

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The only possible exception to this I can think of is if I was, for example, on

circuit, or even possibly in Brisbane, and had before me a whole run of the same

offences from the same suburb and a similar period of time. If this were the case

I might form a view on prevalence.275

If a court is sentencing in a regional or provincial area, then it can make a

difference. Even in Brisbane, if there is a prevalent offence such as break and

enters by drug offenders, a judge can take judicial notice of something that

everybody knows.276

Fox and Freiberg note that courts are not forbidden from using their own general

judicial knowledge of the extent of crime, however there have been instances where

assertions have been made from the bench about the prevalence of particular offences

which have later been proven to be incorrect.277 As it is also the case that only a tiny

percentage of crimes committed go through the courts, the judges may not have an

accurate picture of the crimes actually being committed.278 This raises the risk of the

judges’ views on crime being shaped by other, potentially inaccurate sources, for

example the media.279 An example of this is burglary or break and enter offences,

referred to as prevalent by some of the judges in the comments above. Although these

offences may in fact be prevalent, crime statistics also reveal that the burglary rate in

Queensland has been in marked decline.280

Ideally, the court should be provided with data from crime statistics to back up

assertions from prosecutors that an offence is prevalent. There have long been

complaints from both those involved in, and observers of, the justice system that the use

Judge G.

Judge M.

Fox and Freiberg, above n 8, 142-143. The cases referred to are Yuill 10/6/75 a decision o f the Chief Justice o f Victoria; and Marchi 28/7/86.

Ashworth, Sentencing and Criminal Justice, above n 2, 88; Hogg and Brown, above n 112, 9-10.

Ashworth, Sentencing and Criminal Justice, above n 2, 88.

Michael Townsley, Ross Homel and Janet Chaseling, “Repeat Burglary Victimisation: Spatial and Temporal Patterns” (2000) 22 The Australian and New Zealand Journal of Criminology 37,37.

3 55

of evidence of prevalence suffers from problems.281 If evidence of prevalence is to be

put before a court, it should be properly established.282 * However, such statistical900

material has been rarely used in Queensland to establish prevalence.

Several of the judges in the study expressed dissatisfaction with the lack of proper

evidence put before the court on prevalence.

Prevalence is a slippery concept, and not of huge relevance. I am not sure we

have good data on prevalence so as to see if offences are becoming more

prevalent.284

I have a criticism of the process however, which is the unsystematic way in

which prevalence is dealt with by the Crown. I am never given evidence of

prevalence. If I were going to vary what I was otherwise going to do, I would

need information on prevalence. I won’t act on a vague assertion that an offence

is becoming prevalent in the community. Particularly if the press are in court, I

might make a comment saying that there is a need to take into account an

element such as prevalence. But without evidence, I wouldn’t alter what I was

going to do, I would contrast this with something that I specifically took into

account. I use the term “taking into account” in the sense of taking into account

everything that is relevant. If there is no evidence of prevalence I can’t do this.

The only possible exception to this I can think of is if I was, for example, on

circuit, or even possibly in Brisbane, and had before me a whole run of the same

offences from the same suburb and a similar period of time. If this were the case

I might form a view on prevalence. When the lack of evidence is due to a lack

of figures, I suspect there is a lack of funding to the Director of Public

Prosecutions.285

281

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D A Thomas, “Establishing a Factual Basis for Sentencing” [1970] Criminal Law Review 80, 89.

Pavlic v The Queen (1995) 5 Tas R 186, 207.

See eg, R v Joyce [1986] 1 Qd R 47.

Judge V.

Judge G.

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With respect to prevalence, there is no statistical evidence put before the court

on this issue. It is often an impression formed rather than by statistical

evidence.286

Organisations like the Criminal Justice Commission keep statistics on these sort

of matters but they are not given in court. The sentencing process in Queensland287is very skimpy at a practical level, is not well done and needs improvement.

In [the case of Ryan and Vosmaer], the Crown called evidence as to the level of

bank robberies, that they had increased and therefore there was a need to

increase the tariff, so as to be an effective deterrent. It is one of the rare few

cases in which such evidence was given; otherwise it tends to be more

anecdotal.288

In Joyce, evidence from the insurance industry was put before the court as to the

cost to the community of the commission of property offences. In that case the

offenders got away with about $2 million in property with none recovered. If

the prosecution want the range of sentences for a specific type of offence to be

lifted, the onus is on them to put evidence before the trial judge to justify an

increase.289

Prevalence is a consideration, for example in break and enter offences. It is

something that people are looking to the courts to do something about. A

counter balance to this is why should someone get a heavier penalty merely

because an offence is prevalent. Another offence might be just as serious but

not so prevalent, thereby may not get as high a sentence. If a judge is sitting in a

provincial city they may feel the need to protect the society more.290

Directives from the Court of Appeal were also seen as significant:

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Judge K.

Judge M.

Judge DD.

Judge EE.

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With prevalence, the Appeal Court sometimes suggests that prevalence is an

important issue with respect to certain types of offences.291

6.4 .4 G eneral deterrence - o ther considerations

In considering general deterrence, issues of compliance are closely related, as many

people will obey the law for reasons other than the threat of a criminal sanction. They

may, for example, obey the law because it is morally appropriate to do so (normative

compliance), either because they agree that the behaviour is wrong, or that they may not

necessarily agree, but respect the need to obey the law.292 Two judges in the present

study noted this:

With general deterrence, there is an argument that you can deter people from

very serious crimes, but it is a poor argument as a justification for punishment.

People who are law abiding usually do so for other reasons such as moral

reasons, upbringing, environment, social approval and other constraints.293

The Government doesn’t need to reinforce in the community that rape is wrong;

deterrence is not needed for these types of offenders anyway.294

The certainty of punishment is an important aspect of deterrence theory, and general

deterrence in particular.295 A number of judges specifically alluded to this:

General deterrence may be relevant in certain geographic locations, for example

robberies in Queen Street Mall or robberies of taxi drivers. It might have

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291

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Judge O.

Judge M.

Von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research,above n 175, 3. See also Ashworth, “Deterrence” , above n 176, 50 noting that offenders might also be motivated to desist from offending by what their family might think, or by the potential for losing their job.

Judge U.

Judge Z.294

358

relevance to dissuade others, but in my experience it does nothing to deter

others. The only thing that deters others is the prospect of being caught, and

even this doesn’t deter certain types of offenders.296

General deterrence is a factor in the process; you don’t want to send a message

that people can get away with offences.297

General deterrence is very important. People must know that if they do this they

will be punished.298

These comments relate to both the certainty of being caught, and the certainty of

punishment, both of which are important aspects of deterrence. If, as is often the case,

the offence is committed impulsively and spontaneously, deterrence may have little

effect:

It is not going to deter the real incorrigible offender who doesn’t think about the

consequences of their actions.299

In summary then on general deterrence, although there was acceptance (albeit

sometimes grudgingly) by many of the judges of its use, there were many qualifications

put, and scepticism expressed as to its efficacy. There was little agreement on what

types of cases warranted general deterrence, although it was accepted by some that it

was inappropriate in some types of offences, such as domestic violence, where fear in

relation to the threat of sanction would probably make little difference to the offending

behaviour.

The two big issues of concern to the judges in relation to general deterrence were

prevalence and publicity. The judges felt that sentences were getting so little publicity

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Von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research, above n 175, chapter 3.

Judge Y.

Judge G.

Judge O.

Judge S.299

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that there would be little or no general deterrent effect, and that therefore there was little

point in most cases of sentencing on that basis. There was a divergence of views among

those judges who discussed prevalence; with some disagreement as to the significance

of the link between prevalence and general deterrence. There was consensus however

in the view that if prevalence was to be asserted that there should be some form of

evidence produced to back up those assertions. Although some judges felt that they

could take judicial notice of prevalence, there was general agreement that firmer

evidence, such as statistics, should be made available by the prosecutor to back up

submissions on prevalence.

6 .5 S p e c if ic d e te rre n c e 300

Specific deterrence is provided for by s 9(1 )(c) Penalties and Sentences Act 1992 (Qld).

According to Fox and Freiberg, specific deterrence has as its immediate aim “the

application of a criminal sanction in order to dissuade the offender from repeating his or

her offence”.301 Ashworth points out that a sentence based on specific deterrence would

require detailed information on the personal circumstances of the offender including

their previous criminal record; with the court then calculating what sentence would be

required to deter that person.302 This may however give an appearance of lack of

consistency in sentencing,303 and result in harsher sentences for persistent offenders.304

It would also make such sentences of little use as precedents.

Although significantly fewer judges commented on specific deterrence compared with

general deterrence, there were some thoughtful comments on the way in which this

purpose could be usefully employed in sentencing.

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This form of deterrence which relies on deterring the particular offender before the court is referred to by different names, including personal, special or individual deterrence. All refer to the same thing.Fox and Freiberg, above n 8, 207.Ashworth, “Deterrence” , above n 176, 45.Ibid.This is in fact what normally occurs in Queensland, with an escalation in penalty for offenders who have lengthy criminal records, particularly for the offence in question. Whether such sentences are however based on specific deterrence or other grounds is not always clear. If a sentence for a persistent offender was based on specific deterrence, there would be a certain

3 6 0

With respect to personal deterrence, this would not always apply. I would only

use this in the sort of case where I would be able to say to the offender “you are

going to keep doing this if I don’t give you this sentence”. What you are really305talking about here is keeping the offender locked up to prevent repetition.

I would use personal deterrence where there is no previous criminal history or

very little previous criminal history, and I would then be hopeful that the

sentence would deter that person. Where there is criminal history this would be

fairly pointless. I find suspended sentences helpful for deterrence. If you jail a

person their life is wrecked, and not many people survive jail. They become

bitter after the sentence and outlaws for the rest of their life; there is very little

incentive not to re-offend.

The reality is however that personal deterrence is definitely a factor and can be

significant. On a case by case basis, personal deterrence can be very significant,

and I base this on my experience.307 *

308In terms of personal deterrence, for some it will scare them, others not.

With respect to specific deterrence, I give them a lecture and hope it has an

effect. Specific deterrence is certainly something to take into account. The

problem is the lack of evaluation of how effective what has been done to them

is. Effectiveness is not just a matter of analysing recidivism rates.309

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amount of irony involved, as the offender’s recurrent appearances before the courts on similar offences would have demonstrated the lack of efficacy of deterrence for that particular offender.Judge A. What the judge is actually referring to is incapacitation, rather than deterrence.Judge B.Judge H.Judge V.Judge P.309

361

With respect to prevalence, I think that the deterrence aspect is rubbish, except310for personal deterrence.

Deterring the individual is important with younger offenders.311

One judge made comments pointing out the relative pointlessness of specific deterrence

in homicide cases, and where the offender is a drug addict.

With homicide or attempted homicide it is often rare that there is a risk that the

individual would repeat the offence. Most murders tend to be domestic in origin

or concerning individuals; a one off.312

In relation to specific deterrence, there was obvious support from the judges, although

in many cases this was qualified to apply in certain circumstances only. These included

where there was no or little previous criminal history and where the offender was

youthful. On the other hand, it was seen to be of little assistance where the offender

was a drug addict, or in crimes which were spur of the moment, such as domestic

violence cases. In comparison with general deterrence, specific deterrence was less

controversial with the judges, and received greater support. Yet, paradoxically, it was

mentioned much less frequently in the interviews than general deterrence.

6 .6 S o m e c o n c lu s io n s on d e te rre n c e

Comments expressed in relation to deterrence contrasted in particular with the

discussion on just deserts and s 9(1 )(a) above. Where judges spoke easily about

deterrence, even nominating cases where it would apply, this was not the case for

“punishment” (as it was generally referred to by the judges) in s 9(l)(a). Whereas the

judges understood the meaning and were comfortable with the notion of general

deterrence (although not always agreeing with its use); by contrast few understood the

meaning of “just punishment” under that section, and no judges were prepared to

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311Judge Y.Judge G.

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support the use of just deserts, or even retribution. The main reasons for this appeared

to be a lack of education and understanding as to the meaning of the purposes.

Ironically, it was deterrence which was cited as the most controversial purpose, and one

with which many of the judges disagreed. Nonetheless, it is a purpose that continues to

be used in practice; notwithstanding, and even in spite of, the enormity of the literature

on the subject which suggests limiting its use.

Lack of evidence presented to back up assertions of prevalence was the subject of heavy

(and deserved) criticism, and the relative lack of publicity of cases before the court led

to the judges questioning the point of sentencing on the basis of general deterrence.

Specific deterrence was however more generally accepted as a sentencing purpose,

although reservations were again expressed. Despite all of these doubts, it was clear

that deterrence was being frequently used by the judges, and appeared to be the

sentencing purpose most commonly employed. Doubts must remain however whether it

is being used appropriately or effectively, when recourse is had to the literature on this

subject.

7 Section 9(1 )(d) - denunciation

( d ) to m ake i t c le a r th a t th e co m m u n ity , a c t in g th ro u g h the c o u rt , d e n o u n ce s the

s o r t o f c o n d u c t in w h ich th e o f fe n d e r w as in v o lv e d

7.1 In tro d u c tio n

The purpose of denunciation is a symbolic one by which the court conveys a message to

the offender from the community that the conduct is unacceptable. The use of

denunciation as a sentencing purpose in the Victorian sentencing legislation was based

on a recommendation by the Victorian Sentencing Committee.313 The Committee

defined denunciation in its report as involving “the imposition of sanctions that are of a

nature and of sufficient degree of severity to adequately express the public’s abhorrence

312313

Judge G.See Fox and Freiberg, above n 8, 215.

363

of the crime for which the sanction was imposed”.314 * * The Victorian Sentencing

Committee also noted that denunciation as a sentencing goal is often associated with

retributivism.

It has also been noted that denunciation, as an expression of public condemnation of the

offence, is justified on the grounds of maintaining public confidence in the criminal

justice system. Denunciation has long been part of the sentencing process, although

not always expressly stated.317 From time to time however, denunciation or disapproval

has specifically been noted in the case law as a sentencing purpose, such as in the

following comment by Brennan J in Channon v The Queen,318

Punishment is the means by which society marks its disapproval of criminal

conduct, by which warning is given of the consequences of crime and by which

reform of an offender can sometimes be assisted.

7 .2 T h e m e a n in g o f d e n u n c ia tio n

Denunciation as a sentencing purpose did not attract much comment by judges who

were interviewed for the study, particularly in comparison with better known purposes

such as deterrence. In some cases, the judges did not feel that the purpose of

denunciation had any independent meaning, and as has been noted above, the

association with retribution was made by some.

319With denunciation and retribution, I regard these as part of the same thing.

The following comment was almost to the same effect:

Victorian Sentencing Committee Report, above n 93, 100.Ibid, citing Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987, 142.See Warner, above n 2, para 27.See generally, Franklin Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime, Oxford University Press, New York, 1995.(1978) 20 ALR 1,5.Judge CC.319

364

The purpose of denunciation in s 9(1 )(d) has very little impact. A message in

court is a message to whom? This purpose is also partially general deterrence

and partially retribution. It is really the impact on the person which is the most

important.320

It has been suggested in the literature that this intersection between denunciation and321retribution may be a real one. The Victoria Sentencing Committee, quoting from

Nigel Walker noted that the penalty would not have the denunciatory effect unless it

was regarded as just in a retributive sense. The difference between denunciation and

retribution being that unlike the latter which must be appropriate to culpability, the

denouncer can only ask that those to whom the sentence is aimed can believe that it is

retributively appropriate. They cannot demand that the punishment actually be

inflicted; merely that it should be publicly ordered, and thought to have been inflicted.

The judges interviewed also expressed the view that denunciation is about justice being

seen to be done:

For example with denunciation, whatever it means, it is obvious in a lot of cases

that people feel better when they see someone being punished, for example in

child abuse cases; the down side is the publicity if the public thinks that the

courts are not doing this. It is not the sort of thing I would specifically have in323my mind.

However in one view, denunciation had little impact.

I think people get carried away by s 9(1 )(d), when all that means is that the

Parliament as the elected representative of the community has passed the law

3 2 0

321

3 2 2

Judge Y.

Victorian Sentencing Committee Report, above n 93, 102.

Nigel Walker, Punishment, Danger and Stigma: The Morality o f Criminal Justice, Blackwell, Oxford, 1980, 28-29.

Judge V.323

365

that says how much or how little you can hand out and that’ s denouncing the

conduct.324

Denunciation could also be used in relation to specific offences, such as the example

given of housebreaking. In this sense, denunciation is being employed in a similar way

to general deterrence. It also illustrates the links that this purpose has with general

deterrence, albeit the less severe of the two.

The judge has to be aware of general public attitudes, for example that

housebreaking is a common offence. This is reflected in s 9 (l)(d ).325

Two judges spoke about the relevance of denunciation:

In one way you are there as a public vindication of public condemnation of the

offence.326

You can’t be too precise or too subtle in sentencing; you must serve the

community’s legitimate expectations to an extent. This isn’t necessarily

represented by the most noisy members of the community.327

One judge used the concept in a positive way; thus using denunciation to compare the

behaviour of the offender with others who had not offended, so as to vindicate the

behaviour of those not before the court.

Sometimes the sentence itself can fulfil another purpose, that is, it can act as a

vindication to others who obey the law. This would be for example in cases

concerning dishonesty.328

3 2 4

3 2 5

3 2 6

3 2 7

3 2 8

Judge Z.

Judge N.

Judge CC

Judge J.

Judge D.

366

7 .3 Im p o rta n c e o f d e n u n c ia tio n

Denunciation is arguably one of the most important sentencing purposes, and underlies

almost every sentence. Although largely symbolic, it is nonetheless an important part of

the sentencing process in sentencing the offender on behalf of the state.

The Victorian Sentencing Committee noted the following justifications for denunciation

theory; that it prevents crime by the public statement that certain offences will not be

tolerated; that it achieves social coherence through making symbolic statements to that

effect; to appease the victims of crime; and to make a symbolic statement to the

offender that society will not tolerate the commission of the crime for which the person

has been convicted.

On the other hand, the problems with the efficacy of a denunciatory sentence are the

probable lack of usefulness where the sentence is not adequately publicised; and the

speculative effect that the sentence would have on the public’ s perception of the330seriousness of the offence, even if it were properly and adequately publicised.

Denunciation was seen by the judges in this study as largely symbolic, and not

something which would necessarily result in a higher sentence. It was nonetheless seen

as important.

The purpose of denunciation comes into the sentencing process as a matter of

course really. It is not really something because of which you would add extra331to the sentence. There is no quantifiable effect, but it is an important purpose.

One of the important things in s 9(1) is (d), which is to make it clear that the

community, acting through the court, denounces the sort of conduct in which the

3 2 9

3 3 0

331

Victorian Sentencing Committee Report, above n 93, 102.

Ibid 103.

Judge I.

367

offender was involved. It is important for a sentencing court to do that but not

only by sending someone to jail.

With respect to s 9(I)(d) you should be aware of community attitudes. Judges

are part of the community and represent a cross section of the community. They333have different views and backgrounds and different political beliefs.

7 .4 H o w is d e n u n c ia tio n in c o rp o ra te d in to th e s e n te n c e ?

Most judges who referred to the way in which denunciation should be incorporated into

the sentence saw it as something to be included alongside other factors. It was also seen

as something which fitted together with the general punishment of the offender.

The sentencing process is a combination of the deterrent [sic], community

concerns, victims’ concerns, rehabilitation and occasionally denunciatory

aspects. When sentencing, I never say that it is a serious case and I am going to

impose a denunciatory sentence, however.334 *

As to denunciation (s 9(1 )(d)), I will usually include didactic comments in my

sentencing remarks to the offender.

In sentencing, I talk about the need for the community and the community’s

denunciation of the sort of conduct before the court to be noted.336

Sometimes a purpose of sentencing is a validation of the suffering of the victim

by punishing the offender; as well as s 9(1 )(d) - denouncing the conduct of the

accused. ...Punishment and denunciation go together; this is why you sentence

someone and that is the validation for the victim.337

Judge J.

Judge N.

Judge Q.

Judge F.

Judge H.

Judge P.337

368

7 .5 D e n u n c ia tio n an d s p e c if ic o ffe n c e s

Two judges gave examples of specific offences for which denunciation is important.

These were generally seen as the more serious and violent offences.

Denunciation. I use this for the more serious type of sexual offences, not so

much other types of sexual offences; for example, not ordinary rape, the more

serious ones. It might also apply to other serious offences.338

Community disapproval is important in cases such as incest to reflect

community disapproval. Even though prison may not necessarily achieve a

great deal for these types of offenders there may be other reasons why they are

sent to prison. This varies according to the nature of the offence, it is not black

and white. It’s a balancing exercise and one of those intangible things.339

It was evident from the interviews for this study that denunciation was not seen by the

judges as a central sentencing purpose, with this being perhaps consistent with the place

of denunciation in the literature. There was, perhaps surprisingly, a good understanding

of the concept from most of the judges who chose to discuss it, and many claimed to use

it as a sentencing purpose in practice. Many of the comments showed obvious

intersections with other sentencing purposes, particularly retribution and deterrence; and

the use of denunciation in a thoughtful way.

Despite its possible shortcomings, denunciation is an useful sentencing purpose, as it

emphasises and highlights behaviours which were the subject of the charge, and even if

the general public does not hear of the offence, the offenders themselves are a major

target of such sentencing remarks, together with victims if they are in the court. The

inclusion of denunciation in the sentencing legislation of five Australian jurisdictions340

Judge N.

See s 9 (l)(d ) Penalties and Sentences Act 1992 (Qld); s 5 (l)(d ) Sentencing Act 1991 (Vic); s 5 (l)(d ) Sentencing Act 1995 (NT); s 3(e)(iii) Sentencing Act 1997 (Tas); s 429(d) Crimes Act1900 (ACT).

369

has in itself assisted in the integration of this purpose into mainstream sentencing

discourse.

8 Section 9(1 )(e) - protection

( e ) T o p r o te c t the Q u e e n s la n d c o m m u n ity f r o m the o ffe n d e r

8.1 In tro d u c tio n

The necessary and ultimate justification for criminal sanctions is the protection

of society from conduct which the law proscribes. ... Criminal sanctions are

purposive and they are not inflicted judicially except for the purpose of

protecting society; nor to an extent beyond what is necessary to achieve that341purpose.

The inclusion of protection of society as a sentencing goal in its own right is relatively

new, and has received judicial support in the Federal Court and High Court in both

C h a n n o n v T h e Q u e e n 342 and V een v T h e Q u e e n (N o 2 ) .343 In addition to protection

being specifically stated as a sentencing goal, it also receives prominence in s 3

P e n a lt ie s a n d S en ten ces A c t 1992 (Qld), which contains a statement of the purposes of

the Act. Section 3(b) states as follows:

(b) providing for a sufficient range of sentences for the appropriate punishment

and rehabilitation of offenders, and, in appropriate circumstances, ensuring that

protection of the Queensland community is a paramount consideration.

Protection of the Queensland community is specifically stated to be a sentencing goal in

s 9(1), as seen above. Incapacitation is a similar purpose, necessarily involving the

Channon v The Queen (1978) 20 ALR 1, 5 per Brennan J.

Ibid.

(1988) 62 ALJR 224, 239 per Deane J. See also comments by Fox in Richard Fox, “The Killings o f Bobby Veen: The High Court on Proportion in Sentencing” (1988) 12 Criminal Law Journal 339.

34 1

3 4 2

3 4 3

370

imprisonment of the offender, while protection need not (although a custodial sentence

may frequently be imposed where protection is a primary consideration). The ALRC

defined incapacitation as aiming to “protect other members of society, chiefly by

imprisoning offenders who are likely to re-offend” .344

The ALRC Report No 44 on sentencing did not consider that protection should be

invoked as a general sentencing objective. The reason for this was that it was

considered to be a preventative sentence and based on possible future offending, rather

than the crime actually committed.345 The ALRC concluded:

It therefore runs counter to the general principle of justice underlying this report

and the criminal justice system, which requires that the punishment imposed be

linked to the crime committed by the offender.346

For similar reasons, the Victorian Sentencing Committee concluded that incapacitation

should not be applied to sentencing in general, and recommended against its inclusion in

legislation.347 The provision on protection which is now in the Victorian Act348 was in

fact not included in the original draft of that legislation put before Parliament, the

reason being that it was thought to have been implied.349

Although protection is specifically listed as a purpose for sentencing in s 9(1 )(e) of the

Penalties and Sentences Act 1992 (Qld), it is not ranked any higher than the other

purposes. It does however occupy an elevated role in the Queensland Penalties and

Sentences Act by three other means. The first is the Preamble, which reads as follows:

3 4 4

3 4 5

3 4 6

3 4 7

3 4 8

ALRC 44, above n 16, 18.

Ibid.

Ibid.

Although noting that it would be appropriate for an offender coming within the insanity defence. See generally Victorian Sentencing Committee Report, above n 93, 95-100, 120-121.

Sentencing Act 1991 (Vic) s 5 (l)(e ), which is identical to s 9 (l)(e ) o f the Penalties and Sentences Act 1992 (Qld).

Fox and Freiberg, above n 8, 217.3 4 9

371

Whereas -

1. Society is entitled to protect itself and its members from harm.

2. The criminal law and the power of courts to impose sentences on offenders

represent important ways in which society protects itself and its members

from harm.

3. Society may limit the liberty of members of society only to prevent harm to

itself or other members of society.350

The second instance is s 3, which contains the purposes of the Act, and was amended in

1997 at the same time as the serious violent offences amendments.351 Section 3(b) was

amended to read:

(b) providing for a sufficient range of sentences for the appropriate

punishment and rehabilitation of offenders, and, in appropriate

circumstances, ensuring that protection of the Queensland community is

a paramount consideration.

Thirdly, also as part of the 1997 amendments, protection was elevated to a primary

purpose for sentencing offenders to whom s 9(3) Penalties and Sentences Act 1992

(Qld) applies. If the offence involved the use of violence against another person, or

resulted in physical harm to another person, the sentencing court must have primary

regard to the factors in s 9(4), which include:

(a) the risk of physical harm to any members of the community if a custodial

sentence were not imposed;

(b) the need to protect any members of the community from that risk;

(c) any disregard by the offender for the interests of public safety;

(k) anything else about the safety of members of the community that the

sentencing court considers relevant.

See also comments on the drafting o f the preamble by the Attorney-General who introduced the Bill, the Hon Dean Wells in the Appendix to this thesis at 1-2.

See Penalties and Sentences (Serious Violent Offences) Amendment Act 1997, no 3 o f 1997.

Or counselling or procuring the use of, or attempting or conspiring to use.

372

The employment of the terms “use of violence” and “physical harm” mean that these

provisions have a wide application, but does not mean that the court must impose a

substantial period of imprisonment, or that the court no longer has a discretion in such354cases.

n reApart from the usual provisions for sentences of imprisonment, the Penalties and

Sentences Act 1992 (Qld) has additional sections which are clearly aimed at protection

or incapacitation. These are: Part 9A Convictions for Serious Violent Offences, which

provides for offenders convicted under that Part to serve 80% of their sentences (or 15

years, whichever is the lesser), before being eligible for parole, and to forego

remissions;356 and Part 10, which controversially357 provides for indefinite sentences for

offenders convicted of “violent offences” 358 and who are a “ serious danger to the

community” .

8 .2 P ro te c tio n in s e n te n c in g

In common with denunciation, the judges did not comment in much depth on the

purpose of protection. One judge did not feel that it had much independent meaning:

See generally, Geraldine Mackenzie, Summary Offences, Law and Practice Queensland, Looseleaf, LBC Information Services, Sydney, 1995, paras 9.545 - 9.570.

Taylor and Napatali (1999) 106 A Crim R 578.

See Part 8 Penalties and Sentences Act 1992 (Qld).

See s 166 Corrective Services Act 1988 (Qld), and s 161D Penalties and Sentences Act 1992 (Qld) respectively.

See criticism in Jim Parke and Brett Mason, “The Queen o f Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Q ld)” (1995) 19 Criminal Law Journal 312; Peter Mals and Geoffrey Grantham, “Queensland Boards a Sinking Ship - New Dangerous Offenders Legislation” (1993) 18 Alternative Law Journal 17.

Defined in s 162 as an offence in effect involving violence punishable by life imprisonment.

Discussed in s 163; see also R v Wilson [1998] 2 Qd R 599, 668 (Pincus JA) where it was held (following the approach in Carr [1996] 1 VR 585) that the offender must be a serious danger at the time of the sentence, together with a risk o f serious harm to people if there was a determinate sentence imposed instead of an indeterminate one. See also Part 2A o f the Sentencing Act 1991 (V ic), and Richard Fox, “Legislation Comment: Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (V ic )” (1993) 17 Criminal Law Journal 394; also Mark Brown, “Serious Violence and Dilemmas o f Sentencing: A Comparison o f Three Incapacitation Policies” [1998] Criminal Law Review 710.

373

With respect to the current principles and s 9(1 )(e), protection is mainly

punishment anyway.360

Another judge considered that it included deterrence:

Protection of society is also an important purpose, and this includes

deterrence.361

Protection was seen as an important sentencing purpose, albeit one which may not need

to be used often. In this sense, the judges were probably referring to particularly

dangerous offenders.

Sometimes it is important to sentence for protection of the public so as to

segregate the offender.362

As to protection of the community (s 9(1 )(e)), this must be taken into account

where the facts demonstrate that protection of the community is needed in that

case. Prior to the passing of the Act, protection of the community was not

always a valid consideration in sentencing.363

With respect to protection of the community, this would be rarely used.364

Protection of the community is an aspect that I would look at in determining the

penalty where it is applicable. Often it is done without really saying.365

Protection of the community is an important issue, but not one that is necessarily

taken into account by the Court of Appeal. In the District Court, we can assess

the risk.366

3 6 0

3 61

3 6 2

3 6 3

3 6 4

Judge C.

Judge X.

Judge Q.

Judge F.

Judge D.

Judge I.365

374

Prediction was seen to be one of the issues in assessing dangerousness, however one

judge pointed out that future dangerous behaviour can sometimes be predicted from

what has gone before.

I believe that you can sometimes predict future dangerousness from what a

person has previously done, especially repeat offenders. You can often tell that

they will do it again, for a good example see the cases of Veen No 1 and Veen

No 2. Protection as a purpose is often under valued, but there are grave

problems of whom it is done to and risks of making mistakes. It should be borne

out by the possibility that they’re going to commit an offence again. The

remarks only apply to offences of violence and sex offenders.367

In the examples noted of Veen No 1 and Veen No 2368 the High Court of Australia

initially gave the offender the benefit of the doubt and reduced his sentence for

manslaughter from life to 12 years, only for him to re-offend in almost identical fashion

eight years later, nine months after his release on licence.

In a similar way to the judge above, the following judge also pointed out the chance of

making mistakes, but added that there are times when there is clear evidence that the

person will re-offend.

Now there are statutes governing the process, and these limit the exercise of

discretion. The difficulty with subsections 9(4)(a) and (b) of the Penalties and

Sentences Act is that you cannot sentence a person on the off chance he or she

might commit another offence in the future; see Veen No 2 (a High Court case).

But if I have clear evidence that the person is a psychopath and is a clear danger

to the community, then society needs to be protected from that person and a

heavier sentence may well be called for.

3 6 6

3 6 7

3 6 8

3 6 9

Judge S.

Judge Y.

(1979) 143 CLR 458; (1988) 164 CLR 465.

Judge EE.

3 7 5

The need to protect society from dangerous offenders was important to a number of the

judges in the study.

I think you should jail people to protect society, ie, physically dangerous or

people without morals or ethics as such who take other people’ s property, and

protect others by locking them up. If people are so bad that you can’t release

them, they should be kept comfortably and securely out of harm’s way, if their

psychological makeup is such that we need to lock them up.370

Protection of the community. I would save this for a case where you have to

lock up the offender to protect the community. I would use this only for the

most serious category of offences.371

Protection of the community in s 9(1 )(e) must necessarily be in mind when

sentencing for example a violent rapist. This purpose is particularly important372for violent offences.'

Another category mentioned was a repeat offender in cases of bank robbery:

Contrast this with a recidivist where there may be community protection

required.373

In general therefore, there was support for protection in sentencing, but this was mainly

directed to the situation where the offence was a dangerous or serious one, although

indications for its more general use were also given. The way in which protection

appears to be used in practice by the judges in this study seems not to be in serious

conflict with the views of either the ALRC or the Victorian Sentencing Committee.

Critics of incapacitation have pointed to the potential for over-prediction and false

3 7 0

371

3 7 2

3 7 3

Judge CC.

Judge A.

Judge K.

Judge N. See the remainder of this comment in the discussion on deterrence at 6.3.2 above.

376

positives,374 and these remain potential causes for injustice in Queensland due to the fact

that no restrictions are placed on the use of protection as a general sentencing purpose in

s 9(1), and further that it has now assumed a position of dominance in cases of violence

or physical harm under ss 9(3) and (4).

9 Restorative justice

9.1 In tro d u c tio n

Perhaps as an adjunct, or even antidote, to the rise of retributivism and just deserts,

restoration, particularly in relation to the position of victims, has assumed an important

role in sentencing. Restoration does not appear as one of the purposes for sentencing

in s 9(1) of the P e n a lt ie s a n d S en ten ces A c t 1992 (Qld), however restoration and

compensation play a major role in sentencing in Queensland,376 and as noted at the

beginning of this chapter, various aspects of restorative justice are discussed here as an

adjunct to the analysis of the judges’ comments on the more conventional sentencing

aims.

Despite s 9(1) being prescriptive as to the sentencing purposes allowed to be employed

in Queensland, there are indications in the P e n a lt ie s a n d S e n te n ce s A c t 1992 (Qld) and

other legislation that restorative justice principles are to play a significant role. Part 3

Division 4 of the P e n a lt ie s a n d S en ten ces A c t provides for compensation orders as part

Noted in Victorian Sentencing Committee Report, above n 93, 96-100.

See Andrew Ashworth, “Restorative Justice” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998; John Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 25, The University o f Chicago Press, Chicago, 1999; Kent Roach, “Changing Punishment at the Turn o f the Century: Restorative Justice on the Rise” (2000) 42 Canadian Journal o f Criminology 249; Shereen Miller and Mark Shacter, “From Restorative Justice to Restorative Governance” (2000) 42 Canadian Journal o f Criminology 405; Taskforce on Women and the Criminal Code, Report o f the Taskforce on Women and the Criminal Code, Office o f Women’s Policy, Government o f Queensland, Brisbane, 1999, chapter 3, part 4.

C f the Crime and Disorder Act 1998 (UK), which introduced reparation orders; see James Dignan, “The Crime and Disorder Act and the Prospects for Restorative Justice” [1999] Criminal Law Review 48; Allison Morris and Loraine Gelsthorpe, “Something Old, Something Borrowed, Something Blue, but Something New? A Comment on the Prospects for Restorative Justice under the Crimes and Disorder Act 1998” [2000] Criminal Law Review 18; and Martin Wasik, “Reparation: Sentencing and the Victim” [1999] Criminal Law Review 470.

377

of a sentence, and is complemented by the Criminal Offence Victims Act 1995 (Qld),

which also provides for orders for criminal compensation in relation to a personal

offence.

There have been arguments advanced by academic writers for the elevation of

restorative justice to a major sentencing purpose,377 and this goal would no doubt be

shared by many victims.378 There is a widespread perception that in the twentieth'J'lQ

century victims were neglected by the criminal justice system; and this has been

accompanied by the growth in calls for “victims’ rights” .380 Restorative justice re­

focuses on the individuals before the court, in particular the victim, rather than the

Restorative theories do not necessarily involve victims, and conversely, victim centred

sentencing approaches do not necessarily involve restoration.382 Ashworth notes that

there are two main paradigms operating in restorative justice; one being the provision of

compensation and restitution; and the second involving conflict resolution, mediation

and similar measures. In addition to this, he notes two further aspects of the debate,

which are giving the victim a voice in proceedings (whether by victim impact statement

See for example, Wesley Cragg, The Practice o f Punishment: Towards a Theory o f Restorative Justice, Routledge, London, 1992. Restoration is sometimes included in the list o f sentencing aims: Warner, above n 2, para 1.

See also Charles Pollard, “Victims and the Criminal Justice System: A New Vision” [2000] Criminal Law Review 5, 17.

Andrew Ashworth, “Victim Impact Statements and Sentencing” [1993] Criminal Law Review 498, 498-499, 502; C J Sumner, “Victim Participation in the Criminal Justice System” (1987) 20 The Australian and New Zealand Journal o f Criminology 195, 214-215; and see also discussion in David Brown et al, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, 3rd ed, The Federation Press, Sydney, 2001, at 1422-1432.

See discussion o f this in Ashworth, “Victim Impact Statements and Sentencing” (ibid) 499. See also George P Fletcher, With Justice fo r Some: Protecting Victim’s Rights in Criminal Trials, Addison-Wesley Publishing Company, Reading, Massachusetts, 1996; Mike Maguire, “The Needs and Rights o f Victims of Crime” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 14, The University o f Chicago Press, Chicago, 1991; David Miers, “The Responsibilities and Rights of Victims o f Crime” (1992) 55 Modern Law Review 482; and Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs fo r Victims o f Crime in Australia, Australian Institute o f Criminology, Canberra, 1999.

Heather Strang, “The Future o f Restorative Justice” in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000, 22, citing H Zehr, Changing Lenses: A New Focus fo r Criminal Justice, Herald Press, Scottdale, Pennsylvania, 1990.

Ashworth, “Restorative Justice” , above n 375, 300.

378

or other means), and the development of welfare provisions for victims including giving

them proper support after the offence, information about the case, and compensation

from the state if it is not forthcoming from the offender.383 To these could also be added

a fifth aspect, which is the role of the sentence as a catharsis and a form of public

recognition for the victim, assisting them to move forward from the offence.

In relation to the present study, it should first be noted that questions about victims and

restorative justice were not specifically asked. The fact that many judges in the study

chose to discuss victims and how they fit into the sentencing system indicates the

importance of the role of victims in the sentencing debate, and also the prominence of

the discussion which is currently occurring both in the scholarly literature, but also daily

in the electronic and print media. This discussion on victims is therefore fairly eclectic,

and it may be difficult to draw any definite conclusions because of the limited number

of judges who discussed restorative issues. What it does, however, is give an indication

of some judicial views on victims, raising concerns of fairness to the victim and the

accused, and also demonstrating compassion for the role of victims in the criminal

justice system. The following comment illustrates this awareness:

One of the great innovations in recent times, has been the emphasis on the

victim. All parties are much more acutely aware of this now. This is another

aspect of public opinion which is becoming evident. The newspapers will ask a384relative of the victim for their comment on how they see the sentence.

Of the five aspects of restorative justice involving victims mentioned above, mediation

and conferencing was the least discussed, with only one judge raising this as a<5 oc

sentencing possibility. The reason for this was probably the fact that victim/offender

mediation and conferencing have not been extensively used for adult offenders in

Queensland, and have only been the subject of trial programs.386 Victim offender

3 8 3

3 8 4

3 8 5

3 8 6

Ibid 300-301.

Judge K.

Judge M. See discussion of these comments in chapter 5.

See eg, Louise Macrae, “Victim Offender Mediation in Queensland” (1994) 14 Socio-Legal Bulletin 7; Gay Clark and Iyla Davies, “Victim Offender Mediation in Queensland” (1994) 14 The Queensland Lawyer 169; Peter Condliffe, “Bringing Victims to Justice: The Criminal

379

mediation is however a specific option for juvenile offenders in the form of community

conferencing in Queensland.387 Restorative justice mediation programs such as

conferencing, sentencing circles and mediation have however been used in other

jurisdictions, and will no doubt continue to increase in popularity. Community

conferencing and similar schemes are also increasingly being used in sentencing

Indigenous Australian offenders.

9 .2 C o m p e n s a tio n an d re s titu tio n

Orders for criminal compensation in Queensland are made on the application of the

victim under the Criminal Offence Victims Act 1995 (Qld). A court can also make an

Reparation Project” (1992) 22 Queensland Law Society Journal 523. Victim/offender mediation has also been used in one-off cases in Queensland; see Wayne Sanderson, “Meeting Mother’ s Killer” , The Australian Magazine, 1996, 24-25 August 1996.

See Juvenile Justice Act 1992 (Qld) s 119A, and Gerard Palk, Gail Pollard and Lyn Johnson, Community Conferencing in Queensland, Juvenile Justice Program, Department o f Families, Youth and Community Care (available on-line at:

http://www.families.qld.gov.au/juvenile/com_conf_content.html), Brisbane, 1998. Reservations have however been expressed in relation to family conferencing, see essays in Christine Alder and Joy Wundersitz (eds), Family Conferencing and Juvenile Justice: the Way Forward or Misplaced Optimism?, Australian Institute o f Criminology (available on-line at http://www.aic.gov.au/publications/lcj/family/index.html), Canberra, 1994.

See eg, Leena Kurki, “Restorative and Community Justice in the United States” in Michael Tonry (ed), Crime and Justice: A Review o f Research, 27, The University o f Chicago Press, Chicago, 2000; Gabrielle Maxwell and Allison Morris, “Putting Restorative Justice into Practice for Adult Offenders” (2001) 40 The Howard Journal 55; Nathan Harris and Jamie Burton, “Testing the Reliability o f Observational Measures o f Reintegrative Shaming at Community Accountability Conferences and at Court” (1998) 31 The Australian and New Zealand Journal o f Criminology 230; F W M McElrea, “Restorative Justice - The New Zealand Youth Court: A Model for Development in Other Courts?” (1994) 4 Journal o f Judicial Administration 33; Carol La Prairie, “Altering Course: New Directions in Criminal Justice; Sentencing Circles and Family Group Conferences” (1995) 28 The Australian and New Zealand Journal o f Criminology 78; Jenny Bargen, “A Critical View o f Conferencing” (1995) 28 The Australian and New Zealand Journal o f Criminology 100; Carol La Prairie, “Sentencing Circles and Family Group Conferences: Response to Jenny Bargen” (1996) 29 The Australian and New Zealand Journal o f Criminology 74. See also discussion o f these issues in Brown, et al, Criminal Laws, above n 379, at 12.2.4, and note in particular discussion of some criticisms o f restorative justice at 1395.

See Neil Lofgren, “Aboriginal Community Participation in Sentencing” (1997) 21 Criminal Law Journal 127; Paul Chantrill, “Community Justice in Indigenous Communities in Queensland: Prospects for Keeping Young People out o f Detention” (1998) 3(2) Australian Indigenous Law Reporter 163; Chris Cunneen, “Community Conferencing and the Fiction o f Indigenous Control” (1997) 30 The Australian and New Zealand Journal o f Criminology 292; Frank Brennan, “Self-Determination: The Limits o f Allowing Aboriginal Communities to be a Law Unto Themselves” (1993) 16 UNSW Law Journal 245; and Chief Justice Paul de Jersey “Speech at Opening of Community Justice Centres: Bamaga and Kowanyama” 28 April 2000. See also the 2000 amendments to the Penalties and Sentences Act 1992 (Qld) which legitimises the role of community input in sentencing indigenous offenders: s 9(2)(o).

380

order for restitution and compensation (including compensation for personal injury) as

part of the sentence under Part 3 Division 4 Penalties and Sentences Act 1992 (Qld).

Although criminal compensation orders in Queensland under the Criminal Offence

Victims Act are not part of the sentence, they are nonetheless an important aspect of the

criminal justice system and are closely related to the sentencing process. Over the past

20-30 years, there has been a reconsideration of criminal compensation and its

importance.390

Ashworth points out that the offender’ s criminal conduct renders them liable to state

punishment and to compensate the victim, and that these are two separate things,

constituting a public and a private wrong, although compensation for victims may also

be part of the public interest and the State’s duty.391 There were several comments

made about criminal compensation by the judges in the study, pointing out the

importance of attributing responsibility to the offender, and giving compensation to the

victim.

In the history of punishment, the Saxons would use punishment such as cutting

off the finger of an offender. The church has stepped into the concept of

punishment and changed it so that the state punishes instead of the victim, and

the “payment” goes to the state instead of the victim. We are now changing this

with the concept of criminal compensation. The church has brought into

punishment concepts of morality.392

Sentencing as an immediate gratification fails to recognise that it is bad for the

victim. What the Criminal Offence Victims Act recognised is that they [the

victims] need to have the sense that they have been vindicated and the offender

appropriately punished and that they have been restored to their original

For an excellent overview of the issues involved in criminal compensation, see Andrew Ashworth, “Punishment and Compensation: Victims, Offenders and the State” (1986) 6 Oxford Journal of Legal Studies 86.

Ibid 111-112.

Judge S.392

381

position, for example by compensation, and have been recognised in the393sentencing process.

Compensation for victims is important. You often see kids in court on property

crimes and they have no idea of being sorry or providing compensation. Their

families can also take the same attitude. The lack of a sense of responsibility

offends me. I fall over backwards to make them pay, particularly people who

take no responsibility.394

The final comment also emphasises the importance of compensation as a means of

emphasising responsibility on the part of the offender for the harm done to the victim.

Criminal compensation can thus not only be a payment to the victim as a form of

recompense for the damage done; but also act as a validation for what has occurred, and

instil accountability on the part of the offender for the result of their actions.

9 .3 G iv in g v ic tim s a v o ic e

9.3.1 V ictim im pact statem ents

The extent of harm done to the victim has always been an important factor to be taken

into account in sentencing,395 however there is now an expectation by victims, and

perhaps also the community at large, that the involvement of the victim will be more

than just a statement by the Prosecutor.396 One way of giving victims a voice in the

sentencing process is via the use of a victim impact statement, the use and popularity of

which is increasing in many jurisdictions, including Queensland. In Queensland,

393

394

395

396

397

Judge H.

Judge M.

Harm done to the victim is a matter to which the court must have regard under s 9(2)(c) Penalties and Sentences Act 1992 (Qld). Where the offence has involved violence against another, or has resulted in physical harm, the court must refer primarily to the matters in s 9(4) which emphasis the victim and protection o f the public. See in particular s 9(4)(c) and (d).

Alisdair Gillespie, “Victims and Sentencing” (1998) 148 New Law Journal 1263.

See eg, Tracey Booth, “The Dead Victim, The Family Victim and Victim Impact Statements in New South Wales” (2000) 11 Current Issues in Criminal Justice 292; Dianne Mitchell, “Victim Impact Statements: A Brief Examination o f the Their Implementation in Victoria” (1996) 8 Current Issues in Criminal Justice 163. See review of the use of victim impact statements in Brown, et al, Criminal Laws, above n 379, at 12.6.1.

382

they are accepted as part of the information on sentence by virtue of s 15 of the

Penalties and Sentences Act 1992 (Qld), which states that the court may receive “any

information ... that [the court] considers appropriate to enable it to impose the proper

sentence” .399 There is also implied provision in the Criminal Offence Victims Act 1995

(Qld) for victim impact statements 400 There is no legislative prescription in

Queensland as to the manner by which the statements may be presented 401 Options

include the statement being read to the court by a victim or a family member, or the

statement being read by the Prosecutor 402

At the time of the interviews for this study in late 1998, victim impact statements were a

relatively new phenomenon, having begun to be used in the Queensland courts since the

early 1990s, but only coming into common use in the mid 1990s 403 Victim impact

statements have been in use in Victoria since May 1994 404 The judges who commented

on victim impact statements in this study expressed concern at the way in which the

statements were being used in the courts, together with expectations by victims and the

community for their use. The necessity for the victim to be involved in the sentence

was not questioned, but there was seen to be need for clarification and definition of the

role. See for example the following comment:

398

39 9

400

401

40 2

403

404

See generally, Aldo Raineri, “Re-integrating the Victim into the Sentencing Process: Victim Impact Statements as an Element o f Offender Disposition” (1995) 11 QUT Law Journal 79; also specifically on the Queensland experience, Matthew Thrower, “Victim Impact Statements: The Voice o f Shattered Lives” (1996) 16 The Proctor 16. For a comprehensive review o f the arguments for and against the use o f victim impact statements, see Ashworth, “Victim Impact Statements and Sentencing” , above n 379; c f Edna Erez, “Who’s Afraid o f the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement o f Justice” [1999] Criminal Law Review 545.

This also allows the sentencing court to receive information via pre-sentence reports, medical reports and the like.

Section 14(1) Criminal Offence Victims Act 1995 (Qld) states that “At the sentencing o f an offender for a crime, the prosecutor should inform the sentencing court o f the appropriate details of the harm caused to a victim by the crime ” See also Eola Barnett, “ Criminal Offence Victims Act 1995 (Qld) - Some Observations” (1996) 12 Q UT Law Journal 88.

Barnett (ibid).

Thrower, above n 398.

Ibid.

Victim impact statements are available in Victoria by virtue of the Sentencing (Victim Impact Statement) Act 1994 (Vic), which came into effect on 31 May 1994. See also Mitchell, above n 397.

383

Victim impact statements are a growth industry, and have grown like Topsy

without being done with any order, or having proper policy direction. Is the role

of the victim impact statement to talk about the impact, or to demand jail? The

appellate courts haven’t given any real assistance as to what should be done

about this. It is clear that the victim must be involved, but it is a question of

defining what that role is.405

The possibility of misuse of the victim impact statement has also been of concern, and

has prompted guidelines issued in 1996 by the Queensland Director of Public

Prosecutions.406 The guidelines note that some victim impact statements have contained

inadmissible and in some cases inflammatory material. Several judges also expressed

concern about this, in particular the noted tendency for some statements to border on

revenge.

Fortunately we haven’t got to the stage of an eye for an eye and a tooth for a

tooth. I ’m not sure about victim impact statements. It’ s something that

encourages the press, and the press have developed an unfortunate habit of

getting the victims and relatives of a deceased victim to speak; and they say

things such as I think the sentence is far too light etc. It’ s encouraging the

public to criticise the judiciary and that criticism is acceptable if it is informed.

However from what I read in the paper the victims and relatives appear to be

speaking with revenge in mind. This is unfortunate as it shows some reversion

to an eye for an eye 407

Retribution is very similar to vengeance, and sometimes victim impact

statements can verge on this.408

405

406

407

Judge BB.

Victim Impact Statements: Guidelines issued by the Director o f Public Prosecutions Pursuant to Section 11(1 )(a) o f the Director of Public Prosecutions Act 1984 (Qld) to Crown Prosecutors and Counsel Prosecuting for the Crown, 10 May 1996.

Judge EE.

Judge T.408

384

Several judges also felt that the existence of the victim impact statement in a particular

case did not make a difference to the outcome. There were also suggestions that the

role of the statement may be more significant to the victim and their needs than to the

actual sentencing process. Research has suggested that the inclusion of victim input in

sentencing has had “ little or no effect on the processing or outcomes of criminal

cases” ,409 and that practitioners had resisted reform initiatives inconsistent with their

own world views and institutional priorities, and that there was an embedded legal

culture exerting a homogenising effect on sentencing.410 Whether or not the statements

actually do make a difference, they are undoubtedly a way in which the victims

themselves or their spokespersons can clearly tell the court of the harm done to them by

the offence,411 rather than have the victim’s stories retold in clinical ways which “flatten

the harm” done.412

Statements by the judges regarding the utility of the statements were as follows:

In terms of victim impact statements, I suspect they are not really reflective of

public opinion. They are a good thing but I always ask the prosecutor if he or

she has inquired of the victims whether they want to read the statements to the

Court. This is part of the system of catharsis, but I have yet to be given a

statement which has made a difference to the sentence I would have given in the

case. Despite this however, they are a good part of the process.413

The existence of a victim impact statement doesn’t mean that you impose a

greater penalty and on occasions I read from them when sentencing a person 414

Edna Erez and Linda Rogers, “Victim Impact Statements and Sentencing Outcomes and Processes” (1999) 39 British Journal o f Criminology 216, 216; Edna Erez and Kathy Laster, “Neutralizing Victim Reform: Legal Professionals’ Perspectives on Victims and Impact Statements” (1999) 45 Crime and Delinquency 530.

Erez and Rogers, above n 409, 234. See also Erez and Laster, above n 409; Edna Erez, “Victim Participation in Sentencing: Rhetoric and Reality” (1990) 18 Journal o f Criminal Justice 19; Edna Erez, “Victim Participation in Sentencing: And the Debate Goes On” (1994) 3 International Review o f Victimology 17; and Cook, David and Grant, above n 380, 62.

Thrower, above n 398.

Erez and Rogers, above n 409, 234.

Judge G.

Judge EE.414

385

In contrast to these statements by judges in the current study, research in the United

States based on a survey of judges found that four-fifths stated that the victim impact

statement had some effect on sentence; with the matters found most useful being

information on economic loss, physical harm and psychological effects.415

Expectations of victims are difficult to assess, however one victims’ rights advocate has

stated a belief that victim impact statements do not influence the judge on sentence, but

have a role to facilitate the involvement of victims who were previously excluded from

the court process 416 The judges in the present study appear to be of the view that the

statements do not have much influence on the sentence, but as the number of judges

who commented on this were small and self selected, it may be wrong to draw any

conclusions from their comments.

Ashworth also raises questions about the basis upon which offenders should be

sentenced where the victim has suffered abnormally serious side effects, and the use of

the victim impact statement in these circumstances.417 These questions remain

unanswered, but should be further considered together with other issues regarding the

use of the victim impact statement. Other disadvantages of the use of victim impact

statements can be their subjectivity, and the tendency to place emphasis on the social

worth of the victim 418 Ashworth suggests that the use of victim impact statements

should be reconsidered and that it is suggested that if they are the means by which

increased respect is shown to victims by the criminal justice system, then the best way

forward would be to improve victim services, as he suggests the right to submit a

statement may be high in profile, but low in improving genuine respect.419

Ashworth, “Victim Impact Statements and Sentencing” , above n 379, 502, citing S Hillenbrand and B E Smith, Victim Rights Legislation: an assessment o f its impact on criminal justice practitioners and victims (National Institute o f Justice, Washington, 1989).

Noted in Thrower, above n 398, 18.

Ashworth, “Victim Impact Statements and Sentencing” , above n 379, 506.

Amy Phillips, “Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements in Capital Sentencing” (1997) 35 American Criminal Law Review 93.

Ashworth, “Victim Impact Statements and Sentencing” , above n 379, 509.

386

The positive advantages of using victim impact statements need to be balanced with

these other considerations in the continued debate on the issue.420 The judges’ views on

victim impact statements were ambivalent, with a number pointing out the drawbacks of

their use. There was however an acknowledgment of the significance of the statement

for the victim, and also the importance of the victim’s participation in the process.

9.3 .2 V ic tim advocacy

In the United States, many states allow the victim a right of address on sentence.421

This is not an option which has been formally adopted in Australia.422 Although no

judges in this study advocated that a victim should have a right of address, one judge

suggested that it may be appropriate in certain cases to allow the victim to speak.

I make sure all of the victim’s family, if appropriate, has an opportunity to

speak 423

In contrast, another judge noted the potential problems with victim advocacy:

The role of the victim is difficult; strictly speaking the victim shouldn’t advocatei 424on the sentence.

The same judge spoke of addressing the victim and their family as part of the sentence,

and the importance of this:

Judges need training to involve the victim before they pass sentence. Before I

actually sentence the offender, I often tell victims that I am not a free agent and

420

421

42 2

423

Donald Hall, “Victim’s Voices in Criminal Court: The Need for Restraint” (1991) 28 American Criminal Law Review 161; Geoff Hall, “Victim Impact Statements: Sentencing on Thin Ice?”(1992) 15 New Zealand Universities Law Review 143.

Ashworth, “Victim Impact Statements and Sentencing” , above n 379, 505, citing M McLeod, “An Examination of the Victim’s Role at Sentencing” (1987) 71 Judicature 162, 164-165.

See eg, recommendation against this by the ALRC who argued that the present situation, where the victim is not a party to the proceedings, should continue: ALRC 44, above n 16, 104.

Judge G.

Judge H.424

387

have to apply the law, but am taking into account their circumstances and

anything they may have said. I also tell them that I can’t take away or assuage

their pain, but then I tell them that I hope after this you can achieve healing.

This is always well received by victims. I then sentence the offender after

that.425

Although having the victim speak at the time of the sentence is not a widespread

practice, the evident willingness on the part of some judges for this to occur indicated a

preparedness to allow the victim to play a more significant role. There was also

acknowledgment on the part of some judges that it was desirable to recognise the rights

and needs of victims in the process, and an awareness that victims were entitled to

proper support and information.

You must keep in mind the victim’s rights and show compassion to the

victims.426

What is healing and redemptive for victims is that the judge cares about them. It

is easy as a judge to sit back and attack the accused, but this does nothing for the

victim and is inconsistent with the purposes of sentencing 427

9 .4 C a th a rs is

The increased involvement of victims in the sentencing process over the past five years

has brought with it a greater recognition of the victim as a participant in the process, and

has also given victims added opportunities to finalise matters concerning the criminal

proceedings and get on with their lives. One victim has described writing a victim

impact statement as a “release button” for the anger and frustration, and a worthwhile

experience. ̂ This process of catharsis is becoming an increasingly important part of

425

426

427

428

Judge H.

Judge P.

Judge H.

Thrower, above n 398, 17. See also comments about the positive effects for the victim of writing such statements in Cook, David and Grant, above n 380, 61.

388

the sentencing process for victims, and in fact is seen by Ashworth to be one of the main

advantages of a victim impact statement429

This aspect was noted by one of the judges, but with reservations:

It is important that people go away from court thinking that if somebody is

killed, the way that they are treated by the state gives the person their worth, ie,

not concentrating solely on the position of the offender. There have been

difficulties in how to treat victim impact statements, and although these may be

therapeutic, I am not sure how much effect in practical terms they have on the

outcome.430

One judge felt that at times, victims were looking for retribution or revenge.

On the other hand, victims of crime are entitled to an extent to obtain some

retribution and can become disillusioned with the process. I try to balance this

need for retribution towards the offender with the other factors of the case.

Victims need a sense of some retribution from the law 431

It has been suggested by researchers that preparing a statement may raise the victim’s

expectations regarding the sentence which may not subsequently be fulfilled 432 This

was borne out by statements by some judges who were of the opinion that some

victims’ expectations of the system generally were too high and could not be fulfilled.

A sentencing judge is not even pretending to satisfy the victim, however this

appears to be expected.433

4 2 9

4 3 0

431

4 3 2

Ashworth, “Victim Impact Statements and Sentencing” , above n 379, 501-502. See also discussion in Edna Erez, “Who’s Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement o f Justice” [1999] Criminal Law Review 545, 550-554.

Judge V.

Judge J.

Ashworth, “Victim Impact Statements and Sentencing” , above n 379, 501. Research has also suggested that victims can be disillusioned even if the “desired” sentence is given when it doesn’ t have cathartic effect desired or expected: Cook, David and Grant, above n 380, 63.

Judge R.433

389

When I am sentencing I make remarks like “the law is not designed to assuage

your grief’ etc, but victims expect that it does, and they are encouraged in this

belief by the media.434

The expectations of the sentence can be too high. The law is a blunt instrument

and is not designed to increase peoples’ happiness 435

Sometimes the families of victims are blind to wider considerations, as they

usually just want someone punished. As a judge you can’ t just pander to that.

Sometimes they are just looking for satisfaction that justice is done, and really

want someone to go to prison. There are really two levels, the public at large,

and the public that are related to the crime in some way 436

Some of the judges above who discussed the participation of victims, including whether

or not it was helpful, noted the problem of raising expectations, and whether the

sentencing process could fulfil those expectations. If, for example, the offender

recei/ed a lesser sentence than was expected or hoped for, this could potentially cause

greater distress than if the victim were not closely involved with the process. If

however the involvement in the sentence can become an effective part of the healing

process, then this is a valuable role for the sentence to play. At this stage however there

is mich future research to be carried out on the involvement of the victim on sentence.

9 .5 Is re s to ra tiv e ju s tic e th e a n s w e r?

The rise of restorative justice has been relatively rapid, and in many ways, the

movement in its present form is still in its early stages,437 however leading researchers

434

435

4 3 6

437

Judge T.

Judge T.

Judge M.

Although restorative theories have had a long history: Ashworth, “Restorative Justice” , above n 375, 309.

390

A'lQsuch as John Braithwaite have been prominent in the debate in the literature.

Questions about the efficacy and delivery of restorative programs are beginning to be

asked,439 together with doubts about its possible corruption to serve non-progressive

goals, and whether it will have an effect on recidivism.440 Levrant et al put forward a

suggestion that there is an argument for the marriage of restorative justice and

rehabilitation, and that such a merger can “challenge the view that harming offenders is

the only and best solution to crime” .441 They conclude:

In short, restorative justice transforms rehabilitation from an entitlement or

welfare paradigm to an accountability paradigm, whereas rehabilitation

transforms restorative justice from a paradigm that speculates in questionable

ways about changing offenders to one that can be the conduit through which

effective services can be transmitted.442

Much of the current debate in the literature on issues related to theories of punishment is

on restorative justice. As the justice system makes the transition into the twenty-first

century, it can only be hoped that restoration and reparation continue to develop where

appropriate, and play a greater role in the sentencing process. There is every indication,

based on current initiatives, that this will occur.

10 Conclusion

The aims and purposes of sentencing is a topic on which the judges in this study had

strong views, however many of these appeared to be personal opinions and not

necessarily linked with the aims and purposes in the sentencing legislation or the

See eg, Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” , above n 375, and literature cited throughout the above discussion. There are many other researchers writing in the area, some of whom have been referred to in the above discussion.See Maguire, above n 380; Ian Edwards, “Victim Participation in Sentencing: The Problems of Incoherence” (2001) 40 The Howard Journal 39. See also analysis in Roach, above n 375.Sharon Levrant et al, “Reconsidering Restorative Justice: The Corruption of Benevolence Revisited?” (1999) 45 Crime and Delinquency 3.Ibid 22-23.Ibid 23.4 4 2

391

crimimological theories of punishment. At times, some judges did not appear to have a

clear understanding of the aims and purposes and their meaning, although some of this

could be attributed to the interview situation, and the limitations of that research

methiod.

In perhaps a surprising number of cases, the judges were opposed to the statement of

aims and purposes in s 9(1) of the Penalties and Sentences Act 1992 (Qld). It was

frequently said by the judges being interviewed that they already knew these things,

even that they were “motherhood statements” . By stating that expressed sentencing

purposes were unnecessary as judges knew them anyway, it was rarely taken into

accoiunt that even if this was the case (and the judicial interviews suggested that it

wasn’t always), having a clear statement of the aims and purposes may be necessary and

desirable for all other parties and interested persons in the process. These would

incluide the offender, prosecution and defence counsel, researchers and commentators,

and the media and the community in general.

Despite debate in the literature about the “cafeteria system,” a multifarious and eclectic

list c»f aims and purposes from which to choose, the judges appeared unconcerned about

the uncertainty and potential inconsistency which could result. Instead of seeking more

guidance on the use of the purposes by possibly specifying an overriding aim, or more

direction as to the use of the sentencing purposes, the judges appeared to be in favour of

less regulation, rather than more; seeing the issue as largely intertwined with the issue

of judicial discretion and perceived over-regulation of the process.

The interviews also revealed that few judges expressly used the purposes in s 9(1), with

many claiming it as something which they kept in the back of their mind, rather than

overtly stating the purpose of the sentence in terms of s 9(1). If the judges were to use a

sentencing purpose expressly when sentencing, it appeared to be likely to be deterrence.

Regarding the aims themselves, retribution did not find favour with the judges, and few

were conversant with the concept of just deserts. It would have been useful in this study

if they had been asked specific questions about their understanding of just deserts, but

as this study did not set out to test the judges’ criminological or theoretical knowledge,

392

that type of question was not asked. Very few judges recognised s 9(l)(a) as a

statement of just deserts, or as having elements of retribution. Although many of the

judges said that they felt the weight of retributive pressure from the politicians and the

community, it was felt that the independence of the judiciary allowed them to sentence

in a way that they saw fit.

Rehabilitation was a popular sentencing purpose, particularly for young offenders for

whom there was hope of redemption, often through serving some type of supervisory

order. Imprisonment was not generally seen as a rehabilitatory sentence, with

scepticism expressed as to the effectiveness of programs available within the corrective

services system.

Many of the judges disagreed with deterrence as a sentencing aim, in particular general

deterrence; yet paradoxically gave examples of cases where they considered deterrence

appropriate. Deterrence was the most frequently discussed sentencing aim in the study,

and would appear to be the one most frequently used in practice, if the interviews in this

study can be relied upon to give an indication of popularity in practice. In a number of

cases where the judges listed cases where they considered general deterrence

appropriate, it appeared that what they were in fact alluding to were concepts of just

deserts. Several judges pointed out this anomaly, in that their colleagues claimed to be

using deterrence when in fact they were sentencing based on just deserts or even

retribution.443 The lack of publicity in many cases was seen to be significant factor

hindering general deterrence; and similarly, assertions of prevalence were seen as

lacking veracity without statistics or other similar evidence to back up the claims.

Denunciation as a sentencing purpose was perceived as generally useful, but possibly

meaningless by some judges. Links with other purposes, particularly retribution, were

noted. In contrast with the emphasis which is placed on protection of society in the

Penalties and Sentences Act, the judges did not appear to be enthusiastic as to its use.

Protection was however seen as an important purpose of the sentencing process, for use

Cf also the confusion by the Attorney-General on this issue, at the time of the introduction of the Penalties and Sentences Bill (see in chapter 2 at 3.2).

393

in limited circumstances. Predicting dangerousness was raised as a problem, reflecting

reservations about this issue in the literature.

Restorative justice, although not always included as an aim or purpose of sentencing,

attracted significant discussion on its many manifestations. It appeared that the small

number of judges who commented on these issues (for reasons that questions

concerning victims were not part of the study), were supportive of initiatives such as

victim impact statements, but remained unconvinced that these measures were making

any practical difference to the sentence. Victims were encouraged to play a larger part

in proceedings by some judges, with others maintaining reservations as to whether it

was appropriate. This study suggests that there would be benefits from a wider

dissemination of knowledge about restorative justice issues among the judiciary, and

that further research into these issues generally should continue.

In summary of the comments by the judges on aims and purposes of sentencing, it could

fairly be said that their views were utilitarian in nature, rather than retributive. Of the

utilitarian goals, deterrence, and to a lesser extent rehabilitation, were frequently cited

as being used. Although considerable scepticism was expressed in relation to

deteirence, many of the judges spoke about it in a way which appeared to demonstrate

confdence about its effectiveness. As the judges at times pointed out, deterrence may

not aecessarily mean deterrence in the strict sense of the word, but rather mean

retribution, or another sentencing purpose, perhaps protection.

It wis difficult to know from this study whether the judges generally had any detailed

knovledge of the criminological literature, as such knowledge was only evident from

the comments of a small number of judges. This is not to say that a detailed knowledge

of jirisprudential or criminological theory is a necessary prerequisite for judicial

expertise, however if judges are to successfully and meaningfully apply the aims and

purposes of sentencing as expressed in s 9(1), there needs to be greater understanding of

the neaning of the purposes in that section, so that these sentencing aims can be more

effectively applied. For this to properly occur, there also needs to be clarification of the

mealing of the purposes themselves, with the ambiguity and vagueness of the notion of

just punishment in s 9(1 )(a) a case in point.

Chapter 7On law and order, public opinion, community

expectations and the media

394

1 Introduction

Judges should take account of public opinion but the big question and the vexed

question is what is public opinion? It is not what some people in the media,

particularly with extreme ideas think that it is. The judge has a lot of difficulty

in determining what is public opinion.1

The preceding chapters provided some insights into judicial methodology in sentencing

including both the aims and purposes of the process and the process itself. This chapter

examines judicial views of the influence on sentencing of public opinion and

community expectations, and the related issue of the role of the media. The relationship

between the courts and the public is a critical one,2 and it is this relationship which is

further explored in this chapter, in the context of the sentencing process.

The part that public opinion and the media play in the sentencing process is rapidly

becoming one of the most difficult and talked about issues on the sentencing agenda.

Coupled with this is the phenomenon of “ law and order” which raises its head most

frequently at election time, and is becoming a common method of demonstrating

political “ virility” 4 Crime, the criminal justice system and sentencing have long held a

fascination for the general public, and the media is now a conduit for information on

Judge H.See generally, Stephen Parker, Courts and the Public, Australian Institute of Judicial Administration Incorporated, Carlton South, Vic, 1998.George Zdenkowski, “Sentencing Trends: Past, Present and Prospective” in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000, 185.Russell Hogg and David Brown, Rethinking Law and Order, Pluto Press, Annandale, 1998, 1; Justice Michael Kirby, “The Future of Criminal Law” (1999) 23 Criminal Law Journal 263, 274.

395

This .opic.5 Each of these related concepts will be discussed in this chapter, in the

(context of their potential for, or actual influence on judges in the sentencing process.

2 Law and order

2.1 T h e p o lit ic s o f law an d o rd e r

A najor feature of sentencing in the 1980s and 1990s has been the increasing

politicisation of the sentencing process,6 and thus criminal justice is “now administered

in th? context of saturation media coverage, and highly politicised concern about certainn

law md order issues” .

“Lav and order” has been a popular political theme in comparable jurisdictions

worldwide, linked with conservative criminal justice policies and a rise in imprisonment

rates.8 The law and order rhetoric is sometimes linked with waves of revulsion

generated by violent crime, in particular the “iconic force” of horrific murders and other

violent crimes.9 Tony Bottoms also notes a political trend toward “populist

puniiveness” , for one of three main reasons; a crime reduction strategy based on

general deterrence or incapacitation; to strengthen the moral consensus against certain1 0acthities; and to satisfy the electorate.

Julian Roberts, “Public Opinion, Crime, and Criminal Justice” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 16, The University of Chicago Press, Chicago, 1992.Andrew von Hirsch, Censure and Sanctions, Clarendon Press, Oxford, 1993, 2, chapter 10; Andrew von Hirsch and Andrew Ashworth, Principled Sentencing: Readings on Theory and Punishment, 2nd ed, Hart Publishing, Oxford, 1998, chapter 9; David Garland, “The Limits of the Sovereign State - Strategies of Crime Control in Contemporary Society” (1996) 36 British Journal o f Criminology 445.Hon Murray Gleeson, “Who Do Judges Think They Are?” (1998) 22 Criminal Law Journal 10, 15.Von Hirsch, Censure and Sanctions, above n 6, 89. See also Arie Freiberg, “Prison Populations Up, Sentencing Policy Harsher in Australia” (1998) 9(1) Overcrowded Times 1; and John Lea and Jock Young, What is to be Done About Law and Order? Crisis in the Nineties, Pluto Press, London, 1993. In the US, see Katherine Beckett, Making Crime Pay: Law and Order in Contemporary Politics, Oxford University Press, New York, 1997; and Katherine Beckett, “Political Preoccupation with Crime Leads, Not Follows Public Opinion” (1997) 8(5) Overcrowded Times 1.

Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 3, 185.Anthony Bottoms, “The Philosophy and Politics of Punishment and Sentencing” in Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995, 39 ff. See also Arie Freiberg and Stuart Ross, Sentencing Reform and Penal Change: The Victorian Experience, The Federation Press, Sydney, 1999, 2.

396

Political law and order campaigns have increased in prominence in Australia since the

late 1970s,11 culminating in intensity in Queensland in the State election campaign of

July 1998.12 The 1998 campaign resulted in the election of 11 Pauline Hanson’s One

Nation Party representatives to the Queensland Legislative Assembly. The outcome

of the 1998 Queensland State election was that no one political party held a majority of

seats, however the Australian Labor Party assumed government with the assistance of

an independent, and after a by-election, was able to form majority government.14

The 1998 election campaign was characterised by an ever increasing swing to the One

Nation party, and saw traditional conservative policies such as law and order become

popular with all political parties. The pre-election Coalition Government, consisting of

the Liberal and National parties, had made amendments to the Penalties and Sentences Act 1992 (Qld) in 1997, introducing a new Part 9A and related amendments to the Act,

and what was termed “serious violent offences”. These amendments introduced a harsh

sentencing regime which meant that offenders convicted of a “serious violent offence”

as defined by Part 9A, must serve 80% of their sentence before being eligible to apply

for parole, and are not entitled to remissions. One judge clearly saw the genesis of these

amendments in law and order issues.

Satyanshu Mukherjee, “Crime Trends: A National Perspective” in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000, 45. See also Trevor Nyman, “NSW No Safer for its Penal State” [1996] Law Society Journal 61.

As that election occurred only six months before the interviews for this study, the law and order issues raised would have been fresh in the minds of the judges who took part.

Of the 11 One Nation Party members elected to Parliament, one member resigned from the Parliament, and five members resigned from the party in February 1999 and sat as independents. The five remaining One Nation members resigned from the party in December 1999 and formed a new party, the City Country Alliance Queensland (joined by one former One Nation independent in February 2000), which then had six sitting members. Source: Qld Parliament website: http://www.parliament.qld.gov.au/parlib/handbook/IndexCurrMem.htm. At the next State election in February 2001, all former One Nation members lost their seats, however three members of the re-registered party were elected.

In February 2001, the Beattie Labor Government was returned with a record majority of seats (66 out of a Parliament of 89 seats).

397

Changes made to the Act in 1997 introducing harsher provisions for serious

violent offenders were undoubtedly influenced by the legislators’ perception of

public opinion.15

The 1998 election saw promises from the Coalition parties to increase the percentage of

sentence served by serious violent offenders from 80% to 100% , meaning no parole

would be available to such offenders, and a Private Member’s Bill was introduced to

that effect by the Opposition justice spokesperson after the election.16

The policies put forward by the One Nation party in their “Law and Order and Crime

and Punishment” policy statement included the introduction of mandatory sentences,

truth in sentencing - “ 10 years means 10 years, and life means life”.17 The policy

document also included the following statement:

A particular concern is the failure of the judiciary to impose fitting sentences or

uphold existing sentences in the case of appeal. The public is rightly concerned

that judges are too lenient and therefore the outcomes in criminal courts do not

represent the community view. The public is angry and powerless to correct this1 8

situation.

Pauline Hanson’s One Nation party attracted 22.68% of the first preference vote in the

Queensland State election in 1998,19 and sent shock waves through the traditional

parties. Although part of the swing may be attributed to a protest vote, the strong

support for a minority party with simple anti-government policies arguably

demonstrated strong public support for conservative policies such as law and order.

Judge F.

See Corrective Services and Penalties and Sentences Amendment Bill 1999 (no 15 of 1999) (L J Springborg), introduced 27 August 1998, which lapsed on 14 April 1999.

Taken from Pauline Hanson’s One Nation 1998 Queensland State election website, Internet address: http://www.gwb.com.au/gwb/news/onenation/qldstate/crimepol/htm.

Pauline Hanson’s One Nation policy statement on Law and Order - Crime and Punishment: Internet address: http://www.gwb.com.au/gwb/news/onenation/qldstate/crimepol/htm.

Source: Electoral Commission of Queensland;

Internet address: http://www.ecq.qld.gov.au/ecq/98summary.html.

398

The increasing conservatism of the electorate in Queensland in the late twentieth

century, reflected at times in the representation in the Parliament, has meant increased

pressure for sentencing policies such as “truth in sentencing”, and a reduction in the

right of prisoners to ameliorating measures such as parole or remission. Parliamentary

debates on Bills concerning criminal law, sentencing, and corrections provide a forum

for politicisation of these issues.

Deba:e on the introduction of the Penalties and Sentences Act in 1992 provided such an

opportunity for a parliamentary law and order auction.21 Both government and

opposition parties wasted no opportunities to demonstrate their fervour for being seen to

be cracking down on crime. The Opposition justice spokesperson went so far as to say

that law and order was a primary purpose for revenue raising by the state (as opposed to

infrastructure, education, welfare and other government funded purposes):

One of the major reasons, if not the first reason, why in a civilised society we

pay taxes is to institute a system of law and order. Without the rules that society

enforces through its Governments there would be anarchy, pillage, assault and22robbery, and no civilisation.

Despte the rhetoric, “get tough” policies do not necessarily have an effect on the crime

rate, is noted by Brisbane criminologist Professor Ross Homel:

...although “get tough” policies give the appearance of constituting decisive

action, in fact they involve a retreat from rationality and a failure to take the

reality of crime seriously. They invariably fail to deliver the goods in terms of

This was even demonstrated by the actions of the Labor Government in mid 2000, with the proposed repeal and replacement of the Corrective Services Act, and consequent diminution of the availability of both parole and remissions: see Corrective Services Act 2000 (due to come into effect in 2001). In relation to calls for “truth in sentencing” generally, see David Brown et al, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, 3rd ed, The Federation Press, Sydney, 2001, at 12.2.3.

See debates at Queensland, Parliamentary Debates, Legislative Assembly, 5 November 1992 and Queensland, Parliamentary Debates, Legislative Assembly, 13 November 1992, and discussion in chapter 2 at part 3.

Queensland, Parliamentary Debates, Legislative Assembly, 13 November 1992, 689 (Denver Beanland).

399

long term reductions in crime because they are based on fantasies about crime23and punishment rather than on systematic and sober analysis.

2.2 Law and order, violence and fear

In a critique of the law and order phenomenon, Russell Hogg and David Brown

acknowledge that violent and invasive crime is a serious issue and should not be lightly

dismissed.24 If however there is an overemphasis on perceptions of an increase in

violent crime, the increase of fear in the community itself becomes an issue,25 which in

turn can lead to an escalation of severity and imprisonment rates.26 Andrew von Hirsch

and Andrew Ashworth argue that there are two elements present in “law and order

politics” ; firstly appeals for more stringent penal policies such as mandatory sentences

for repeat offenders,27 and secondly an explicit appeal to fear.28 * Fear is a strong

component of the literature on the crime rate; however despite the fact that law and

order has been a strong political platform for at least 20 years, crime control policies in

Australia based on the premise of cracking down on crime haven’t produced the desired

results.30

Hogg and Brown also identify fear as a major element of the law and order debate,

while identifying seven enduring themes in the perceptions of law and order as a

Ross Homel “Flawed Order: The Administration of Justice in a “Get Tough” Era” Brisbane, Faculty of Education, Griffith University, 2 June 1994, 34.

Hogg and Brown, above n 4, 85.

Richard Hil and Glenn Dawes, “The ‘Thin White Line’ : Juvenile Crime, Racialised Narrative and Vigilantism - A North Queensland Study” (2000) 11 Current Issues in Criminal Justice 308; Deborah Lupton, “Part of Living in the Late Twentieth Century: Notions of Risk and Fear in Relation to Crime” (2000) 33 The Australian and New Zealand Journal o f Criminology 21. This is so even in jurisdictions where the crime rate is very low; see eg a study of fear of crime in Tasmania, Mark Brown and Kenneth Polk, “Taking Fear of Crime Seriously: The Tasmanian Approach to Community Crime Prevention” (1996) 42 Crime and Delinquency 398, 418.

John Irwin, James Austin and Chris Baird, “Fanning the Flames of Fear” (1998) 44 Crime and Delinquency 32.See also Michael Tonry, “Mandatory Penalties” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 16, The University of Chicago Press, Chicago, 1992 on the pressure to maintain harsh sentencing schemes for political reasons.

Andrew von Hirsch and Andrew Ashworth, “Law and Order” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998, 410.

See eg, J K Bowen, “The Alarming Growth of Crime” (1987/88) IP A Review 6; and see comments in Hogg and Brown, above n 4, 22 ff.

Mukherjee, above n 11, 45.

400

problem.31 * These are: soaring crime rates; things are worse now than ever (law and

order nostalgia); the shape of things to come (New York and LA ); the lack of

protection from the criminal justice system against crime; greater police powers and

more police; tougher penalties; and victims seeking revenge through the courts.33

The appeal to fear does not necessarily have a relationship with the true risk of crime,34

as one of the judges in the present study pointed out:

There is a lot of fear in the community of crime, rather than fear of the reality of

crime. With the government giving heavier and heavier penalties all the time,

where do you go when this doesn’t work?35 *

The Queensland Criminal Justice Commission issued a research paper in 1994 which<2 zr

looked in detail at the issue of fear of crime. Fear of crime was identified as a matter

for concern when the anxiety produced was out of proportion to the actual risk. In

addition, fear was seen as producing extra costs to the community in terms of public and

private facilities and security, and generally making it more difficult to develop criminal

justice policies.37 Survey data were extracted from the 1991 Queensland Crime Victims

Survey of 6 000 households, and several other smaller surveys conducted by the CJC

and other groups. The Queensland Crime Victims Survey found a strong link between

fear and perceived risk; and that the risk of being a victim of serious crime, particularly

against the person, tended to be overestimated.38 The evidence suggested that levels of

fear and perceptions of risk were increasing, and part of the reason for this (in one study

at least) was attributed to the increased level of media coverage and political discussion

Hogg and Brown, above n 4, 21.Regarding the perceived relationship between urbanisation and crime, cf Russell Hogg and Kerry Carrington, “Crime, Rurality and Community” (1998) 31 The Australian and New Zealand Journal o f Criminology 160.

Hogg and Brown, above n 4, 21.

Lupton, “Part of Living in the Late Twentieth Century: Notions of Risk and Fear in Relation to Crime”, above n 25; Deborah Lupton, “Dangerous Places and the Unpredictable Stranger: Constructions of Fear of Crime” (1999) 32 The Australian and New Zealand Journal o f Criminology 1.

Judge Y.

Criminal Justice Commission, Fear o f Crime, Criminal Justice Research Paper Series Volume 1, No 2, Brisbane, 1994.

Ibid 2.

Ibid 4-5.38

401

about crime issues.39 Media coverage of crime was said to be one of the most

influential factors shaping people’s perceptions and fear of crime, and this in turn

influenced treatment of these issues by key figures, in particular politicians 40 The

research paper concluded that:

It is vitally important that accurate information about the extent and nature of

crime is widely disseminated and that issues relating to crime are reported

responsibly by the media.41

2.3 Law and order campaigns

The effect that law and order policies are having on the political process, and ultimately

the legal process, was identified as an issue for concern by a number of the judges in

this study.

The problem is that less-thinking politicians see an advantage in diminishing the

role of the courts. The court is a curb on political power. There is a fair degree

of division between the executive and the courts. Courts are the only body

which provides day to day restraint on executive conduct. From time to time,

there are approaches to encroach on the court’s jurisdiction; but also sometimes

it has been increased for example in the area of administrative law and

administrative review. The law as enacted in statute has become so complex,

and is amended so often, that it is impossible for lay people to understand, let

alone judges.42

The root problem in sentencing is political. Neither side of politics is prepared

to treat crime as a long term problem, because of the politicians’ interest in short

term political mileage and adopting a knee jerk reaction.43

39

40

41

42

43

Ibid 6.

Ibid 9.

Ibid 12.

Judge W

Judge Y.

402

A frequently desired outcome of political law and order campaigns is harsher prison

sentences 44 A number of judges articulated concerns about “knee jerk” reactions to

perceptions of a rising crime rate. The following comments express the point well:

The question which is really worrying is that the law hasn’t really changed, yet

the prison population has doubled. There is the odd thing where some greater

penalties have been given in some sorts of offences, but this is not enough to

explain why the prison population has doubled. One worries about law and

order campaigns as a cheap way of upping the ante 45

It is in the interest of politicians to feed this debate, but I don’t think it furthers

the debate of law and order very far 46

There was no doubt in the minds of many of the judges who participated in this study

that the law and order debate currently going on in the community and the media was of

particular relevance to sentencing:

Longer prison terms and an emphasis on law and order seem to be part of

political campaigns now. Concepts of retribution, which are popular now, have

been whipped up by the press. The press has a lot to answer for causing terror in

the community.47

I am not sure that increasing penalties will have a lot of impact; the tendency to

increase statutory maximum penalties may have a lot to do with the “getting

tough on crime” stance of politicians 48

There is little doubt that law and order is one of the most pervasive political themes in

recent times.49 The judges were of the view that this trend was having a negative effect

44

45

46

47

48

49

Zdenkowski, “Sentencing Trends: Past, Present and Prospective”, above n 3, 184; Mukherjee, above n i l , 45.

Judge Z.Judge BB.

Judge U.

Judge V.

See generally von Hirsch and Ashworth, “Law and Order”, above n 28.

403

on the sentencing process, and possibly producing harsher sentences and consequently a

higher prison population. The links to retribution and “getting tough on crime” were

also made. These views by the judiciary are not isolated however, as law and order

policies and a rising imprisonment rate are also of concern to judges in other

jurisdictions.50

Law and order campaigns are closely linked with the effect of public opinion on

sentencing, and this is considered below.

3 Public opinion3.1 Public perceptions of sentencing

If calls for law and order punitiveness are linked with appeals to fear and calls for an

escalation in punishment severity;51 are the public perceptions of sentencing on which

these calls are based accurate? Does the public concern, which is perceived to be

creating pressure on the courts, actually exist to the extent believed, and is there a

proper basis for that concern?52 This is an area on which further research would be

useful, as it is becoming increasingly assumed that there is widespread discontent with

sentencing severity and outcomes, when this may in fact not be the case. Many of the

existing studies have in fact suggested that the public is dissatisfied with the perceived53level of sentences and sentencing practices, rather than actual sentencing practices.

In the mid 1980s David Indermaur conducted a study of public attitudes to sentencing in

Perth, Western Australia, questioning assertions from previous studies in the 1970s and

earl} 1980s, which concluded that the public were dissatisfied with the courts, thought

Richard Evans, “Throwing Away the Key: “Get Tough” Penal Policies Solve Nothing” [1994] Law Institute Journal 1131.

Zdenkowski, “Sentencing Trends: Past, Present and Prospective”, above n 3, 184; von Hirsch and Ashworth, “Law and Order”, above n 28, 410.

See for example comments by Zdenkowski: Zdenkowski, “Sentencing Trends: Past, Present and Prospective”, above n 3, 184. See also discussion in Roberts, above n 5.

Andrew Ashworth and Michael Hough, “Sentencing and the Climate of Opinion” [1996] Criminal Law Review 776, 780-781; Michael Hough, “People Talking About Punishment” (1996) 35 The Howard Journal 191. See also Roberts, above n 5; B Mitchell, “Public Perceptions of Homicide and Criminal Justice” (1998) 38 The British Journal o f Criminology 453.

404

that they were too lenient and were calling for harsher sentences.54 Among the results

of Indermaur’s research was the finding that public perceptions of crime were

dominated by images of violence.55 Fear of crime was found to be a significant factor

in the call for harsher penalties whether or not the fear was in proportion to the actual

risk.56 He concluded that politicians could “get tough on crime” by being selective, and

slanting policies toward violent crime where they belonged, instead of other offenders

having to bear the brunt.57 He concluded that:

...it may be that public policy makers need to consider the information offered

by studies which provide an accurate and revised view of public attitude toward

crime and punishment. These studies suggest that public policy can be fine-

tuned to accommodate and balance the legitimate claims of public attitude and

penal reform. Indeed it seems that these interests are not as much in conflict as

many have been led to believe.58

Surveys from five countries on public attitudes to sentencing were collected in 1988.59

Nigel Walker and Mike Hough note that a sentencer who is trying to strike a balance

between individualisation of the sentence and tariff sentencing cannot altogether

disregard public opinion, as the audience for sentencers is the person in the street.60

They also note that at a judicial and political level, greater importance than previously

was being attached to the opinions of the general public.61

The surveys collected by Walker and Hough revealed a degree of cynicism on the part

of the public with the sentencing process. There was a tendency on the part of the

David Indermaur, “Public Perception of Sentencing in Perth, Western Australia” (1987) 20 The Australian and New Zealand Journal o f Criminology 163, 163. See also David Indermaur, Public Perception o f Sentencing in Perth, Western Australia, Report to Criminology Research Council of Australia, 1987.

Ibid 175.

Ibid 177.

Ibid 178.

Ibid 180.

Nigel Walker and Mike Hough (eds), Public Attitudes to Sentencing: Surveys from Five Countries, Gower Publishing Company Limited, Aldershot, UK, 1988.

Nigel Walker and Mike Hough, “Introduction: Developments in Methods and Perspectives” in Nigel Walker and Mike Hough (eds), Public Attitudes to Sentencing: Surveys from FiveCountries, Gower Publishing Company Limited, Aldershot, UK, 1988, 1.

405

public to believe that courts were likely to impose lenient sentences when severe

sentences were called for, and vice versa. Causes of this were likely to be the reporting

of sentencing by the media, and the inaccuracy of popular beliefs about sentencing.62 A

Canadian study, for example, found that the views of most Canadians on crime bear

only a slight resemblance to what the crime situation really is. For example, although

most crime in western countries consists of offences against property, this was not the

perception of most Canadians; and in common with other studies, offences involving

violence were seen to be much more frequent than was the case.64 In a recent review of

similar research in Canada, the fear of crime was said to be a significant factor behind

the public’s views on sentencing,65 however a recent Canadian study found that the

public was becoming more punitive, with social class an important predictor of

attitudes.66 Recent American research also found that the public was punitive, however

also progressive in their attitudes. A study of crime severity and public perceptions of

punishment in California also found that community standards were less punitive than

the current law.68 Earlier British research came to the same conclusion.69

Similar conclusions on fear of crime and public perceptions were revealed in an

Australian survey on sentencing by the Australian Institute of Criminology in the mid

1980s.70 In that study, approximately 2 500 Australians were asked to give the

61

62

63

64

65

66

67

68

69

70

Ibid 1.Ibid 9.Anthony Doob and Julian Roberts, “Public Punitiveness and Public Knowledge of the Facts: Some Canadian Surveys” in Nigel Walker and Mike Hough (eds), Public Attitudes to Sentencing Surveys from Five Countries, Gower Publishing Company Limited, Aldershot, UK, 1988, 111 - 114.

Ibid.

Jane Sprott and Anthony Doob, “Fear, Victimization, and Attitudes to Sentencing, the Courts, and the Police” (1997) 39 Canadian Journal o f Criminology 275.

See Catherine Kaukinen and Sandra Colavecchia, “Public Perceptions of the Courts: An Examination of Attitudes Toward the Treatment of Victims and Accused” (1999) 41 Canadian Journal o f Criminology 365.Francis Cullen, Bonnie Fisher and Brandon Applegate, “Public Opinion About Punishment and Corrections” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 27, The University of Chicago Press, Chicago, 2000.

William Samuel and Elizabeth Moulds, “The Effect of Crime Severity on Perceptions of Fair Punishment: A California Case Study” (1986) 77 Journal o f Criminal Law and Criminology 931,946.

Mike Hough and David Moxon, “Dealing with Offenders: Popular Opinion and the Views of Victims - Findings from the British Crime Survey” (1985) 24 The Howard Journal 160.Paul Wilson (ed), Trends and Issues in Crime and Criminal Justice: No 2 How the Public Sees Crime: An Australian Survey, 3, Australian Institute of Criminology, Canberra, 1990; John

406

appropriate sentence to a person convicted of a list of varied offences, including house

breaking, environmental offences through to a fatal stabbing. The conclusion from the

study was that there is no single set of views regarding punishment which was shared by

all sections of the community, with the conclusions split along gender and socio­

economic lines; for example, the better educated the person, the more likely they were

to be lenient in their treatment of offenders, and the elderly and male persons tended to

be more punitive.71 Although Labor and Liberal party supporters did not differ

significantly in their views, National Party supporters tended to be more attracted by the

rhetoric of punishment.72

An interesting result of the AIC survey was that although the media, at least at the time

of the study, often suggested that Australians were harsh and uncompromising on

matters of punishment particularly involving violent crime, the results of the survey

suggested otherwise. The conclusion was that the diversity of opinions regarding

sentencing indicated an unexpected sophistication in public attitudes regarding

sentencing.73 The authors suggested that although the complexity of the sentencing

process was often unrecognised by the media, the public at large apparently

acknowledged this fact when presented with appropriate information and choices.74

Recent surveys of public opinion in both the United Kingdom and Canada have found

there is a widespread belief among the public that sentences are too lenient, and crime

rates are on the rise.75

Walker, Mark Collins and Paul Wilson, “How the Public Sees Sentencing: An Australian Survey” in Nigel Walker and Mike Hough (eds), Public Attitudes to Sentencing: Surveys from Five Countries, Gower Publishing Company Limited, Aldershot, UK, 1988.

Walker, Collins and Wilson, above n 70, 158-159.

Ibid 159. In Australia, the Liberal and National parties are traditionally conservative and frequently form a Coalition. The traditional constituency of the National Party is the country areas and provincial cities.

Ibid. See also Stephen Davis and Simon Kemp, “Judged Seriousness of Crime in New Zealand” (1994) 27 The Australian and New Zealand Journal o f Criminology 250, 260, which found similar results in a New Zealand study; that there was a reasonable correlation between the views of the public and the sentences actually handed down by the courts.Walker, Collins and Wilson, above n 70.

Sprott and Doob, above n 65; Michael Hough and Julian Roberts, “English Believe Sentences Soft and Crime Rising” (1998) 9(1) Overcrowded Times 1. See also discussion of the public’s view on sentencing in Anthony Doob, “Transforming the Punishment Environment: Understanding Public Views of What Should be Accomplished at Sentencing” (2000) 42 Canadian Journal o f Criminology 323.

407

If, as these studies suggest, public perceptions of sentencing severity are not necessarily

linked with reality, there is cause for concern. Recent studies have suggested that the

courts, at least in New South Wales, are not becoming more lenient; if anything,

probably the opposite.76 If therefore it is the case that courts are prepared to take public

opinion into account (and recent cases such as R v Jurisic77 suggest that this is

beginning to occur), ensuring that the general public is provided with more accurate

information on sentencing becomes important. This does not necessarily mean that

public opinion will suddenly differ when the public becomes better informed, as public

opinion is often based on perception and belief, and perceptions are not necessarily

based on fact. If however more facts are made available to the public, it is logical to

suggest that beliefs would become more accurate.

Public opinion and public perceptions of sentencing are two different things. Public

perception of the process is one of the factors which shapes opinions, and thus public

perceptions are of relevance in any study of the process. Public opinion is becoming a

factor in sentencing which cannot be ignored, as arguably part of the judge’s role is to

interpret and act on that opinion. Section 9(1 )(d) of the Penalties and Sentences Act 1992 (Qld) itself suggests a role for public opinion: “to make it clear that the

community, acting through the court, denounces the sort of conduct in which the

offender was involved”.78 Public perceptions are also closely linked with public

confidence in the system, and therefore are of critical importance.79

These issues were also raised in the Crown Court study, where it was noted that

although there is said to be a role for sentencing in reinforcing social standards and

community solidarity, “the lack of empirical evidence that this actually occurs weakenso n

this as a justification for maintaining a particular level of sentencing”. That study

Zdenkowski, “Sentencing Trends: Past, Present and Prospective”, above n 3, 186, citing J Baker, “Are the Courts Becoming More Lenient? Recent Trends in Convictions and Penalties in NSW Higher and Lower Courts” (1998) 40 Crime and Justice Bulletin 9.

(1998) 45 NSW LR209.

See further discussion on denunciation in chapter 6 at part 7.

See Adams J in R v Jurisic (1998) 45 NSWLR 209, 255-256.

Andrew Ashworth et al, Sentencing in the Crown Court: Report o f an Exploratory Study, Occasional Paper no 10, Centre for Criminological Research, University of Oxford, Oxford, 1984, 30-31.

408

goes Dn to rightly observe that in order for this function to occur, it would be necessary

for smtencers to know of community opinions, and for the community to know of

senteices being passed. It concluded that it was inherently more likely that this was

occuiring only in small communities. These issues are explored in the present study

and are discussed below.

3.2 Should public opinion be taken into account in sentencing?

Whether, and if so how, public opinion should be taken into account in sentencing is a

difficult issue, however some commentators have argued that public opinion about

crimt has already swayed policy makers and politicians.83 The threshold question

whici needs to be considered, is whether there is a place for public opinion in the

senteicing process at all? Various views have been expressed on this. The Lord Chief

Justice of England, Lord Taylor, was of the view that sentences must take account of

pubic opinion “and aim to leave all concerned with a feeling that justice has been

done’.84 There are also regular calls from other sources, including academics, who

believe that there should be more (informed) public involvement in the sentencing85process.

86Whib Australia and the United Kingdom are grappling with these concepts, the

United States (at the federal level), has enshrined formal processes in legislation for

taking account of public opinion. The legislation which establishes the United States

Sentencing Commission requires that in establishing its sentencing guidelines, the

Ibid 31.

Ashworth and Hough, “Sentencing and the Climate of Opinion”, above n 53; Stephen Shute, “The Place of Public Opinion in Sentencing Law” [1998] Criminal Law Review 465.

Barry Mitchell, “Further Evidence of the Relationship Between Legal and Public Opinion on the Law of Homicide” [2000] Criminal Law Review 814.

Lord Taylor, “Judges and Sentencing” (1993) 38 Journal o f the Law Society o f Scotland 129, 129.

See for example, Austin Lovegrove, “Judicial Sentencing Policy, Criminological Expertise and Public Opinion” (1998) 31 The Australian and New Zealand Journal o f Criminology 287.

Zdenkowski, “Sentencing Trends: Past, Present and Prospective”, above n 3, 185-186; Ashworth and Hough, “Sentencing and the Climate of Opinion”, above n 53.

See discussion on the US sentencing guidelines in chapter 5.

409

Commission must determine the relevance of the community view of the gravity of theOO

offence and the public concern generated by the offence.

The views of the judges in the present study on whether public opinion should be taken

into account in sentencing were mixed. Perhaps contrary to popular belief, many of the

judges in the present study said that public opinion was relevant and should not be

ignored. There were however concerns about how it should be taken into account, and

to what extent it should influence the process.

Some judges conceded that while it should not influence the process, that was in fact what was probably occurring:

I sentence according to law, and I do not take into account community concern.

I do not accede to the lynch mob or vigilante groups. ...Public opinion affects

the sentence more than I would be prepared to admit. It is something that you

must take into consideration but must never let it dictate what sentence you

should impose.89

Public opinion is something you can’t discount. No judge wants to be seen to be

unpopular or out of step with what are held up to be community values. Vast

numbers of judges uphold these values, but one has to ask are they

subconsciously affected by popular opinion?90

What concerns me is that in some subliminal way judges and magistrates are being influenced by the political process. It is really frightening when the best

literature and the most respected researchers are saying that if you rehabilitate

someone they won’t offend again, and the best chance to rehabilitate them is not

to lock them up.91

8889

90

Deirdre Golash and James Lynch, “Public Opinion, Crime Seriousness, and Sentencing Policy” (1995) 22 American Journal o f Criminal Law 703, 704.

Judge Q.

Judge W.

Judge Z.91

410

The contrary view was that public opinion should be taken into account, however these

views were sometimes qualified:

Public support is what the courts survive on, and if they ignore this they give

themselves a great disservice. ...Public opinion is important, the whole legal

system depends on it in one way or another.92

Public opinion needs to be considered in the process. A judge simply can’t

ignore sensible public opinion. On the other hand judges cannot simply react to

hysteria about an offence or a particular type o f offence.93

I pay respect to all public opinion, but the amount o f respect I give to what they

say can differ, particularly in extreme cases 94 *

Other judges were o f the view that public opinion does not play a part in the process,

however even some of these did not have an unqualified view on this issue.

Public opinion plays no part in the sentencing process, but as a judge you are

aware o f community expectations.

In most instances the public don’ t know of sentences until after they are

imposed, thereby it is normally impossible for public opinion about a particular95sentence to be taken into account.

Public opinion does not impact on the sentencing process, because the public

doesn’ t know what goes on. It is not our function as judges to be popular, for

example like politicians.96

Judge M.

Judge J.

Judge X.

Judge D.

Judge I.

411

In terms of a sentence being swayed by public opinion, anyone who allows it to happen

should not be a judge. The media doesn’t influence anything I do.97

In the view of another judge interviewed, public opinion may be something that the

judge should be aware of, but it should have no influence on sentencing proceedings.

Public opinion is always in the back of your mind, but you have to be careful not

to let it influence you.98

Views on whether public opinion should be taken into account were therefore mixed.

Only three judges said that it should be considered on sentence, but these views were

mainly qualified by the expressed need to take care. Nearly all o f the judges who

discussed public opinion expressed caution in relation to how it should be taken into

account. Most were not in favour of considering it, however for some there was

recognition of the inevitability of this taking place.

3.3 How is public opinion determined?

The difficulty you have is knowing what the public opinion is.99

There was by no means unanimity in the views of judges in the study that public

opinion should be directly taken into account by the sentencing judge. Despite this,

many thought that it was, or perhaps should be, an influence. The question that then

arises (and was posed by some of the comments above), is how is public opinion to be

determined?

The judge has a lot of difficulty in determining what is public opinion. There

are some offences such as sexually repugnant offences against children which I

regard as very serious, but I am not swayed by any lynch mob mentality. I don’ t

pander to any segment of the community.100

97

98

99

100

Judge N.

Judge E.

Judge AA,

Judge H.

412

Many of the judges alluded to this issue. Some questioned whether the newspapers

should be taken as providing a source of public opinion, such as the following

comment:

I don’ t know what public opinion is. Does one assume this morning’s editorial

in the paper is public opinion? Am I obliged as a sentencing judge to take that

into account? I don’ t think I am.101

One reason given for the reluctance to rely on newspaper opinion was the perceived bias

of that source.

It is difficult as a judge to gauge public opinion. I would hesitate to rely on the

press, both print and electronic, as they run their own agendas.102

Another suggested that letters to the editor were a more reliable source, because of the

removal o f the filtering effect o f journalists.103

3.3.1 Relying on the judge’s own views

The main means of determining public opinion suggested by the judges was their own

views, however reservations were expressed about acting on their own views:

I am very wary about acting on my own view of what public opinion is.104

If the judge was to rely on his or her own view of public opinion, it was stated that these

views could be formed by the judge’s own general knowledge, or from contacts in the

community.

101102103

104

Judge Z.

Judge Y.

See Judge EE, below at 3.3.3.

Judge A.

413

I f you are aware there is a particular public revulsion about a type of offence, for

example child molestation, then you would react to that. Another example

would be home property offences.

The other way I can determine public opinion is by talking to friends and

acquaintances.105

On social occasions people may ask about sentences in certain cases and I can

see that there is some concern - you can’t ignore those sorts of incidents. I think

public opinion is important. These are people in the community who are

speaking to you about a criminal matter with which a judge has dealt.106

The only way to gauge public opinion is to be a member of the community, and

I believe that judges can be too isolated and can live in protected environments.

Many mix in too few circles. What is important is the seriousness of the offence

and if the judge is not totally devoid of public contact, they know how serious an

offence is.107

Public opinion is always in the back of your mind. But how do you know how it

is determined? Judges have friends, family and neighbours as well as other

people. They have the same exposure to public opinion as everyone else. We

don’t live in an ivory tower.108

Judges are able to absorb community views, in the main it is a reflection of their

backgrounds.109

The fact that a number o f judges stated that they felt able to determine public opinion

from their own views and contacts in the community raises the issue of the social and

other contacts of the judges, and whether these are wide enough in order to form views

105

106

107

108

109

Judge C.

Judge EE.

Judge Y.

Judge E.

Judge N.

414

which are representative of the community in general.110 As one judge stated: “Many

mix in too few circles.” 111

3.3.2 Informed public opinion

It hats already been seen that public opinion has a place in the sentencing process in the

minds of some judges, however this does not necessarily mean that any comments were

seen to qualify as valid “public opinion” . Many judges were of the view that only

“ informed public opinion” or “ real” public opinion could be taken into account.

According to Sir Guy Green, public opinion is the ultimate determinant of sentencing

policies and practice.112 * He goes on to qualify this however with the view that the only113public opinion to which the courts should have regard is informed public opinion.

This however presumes that informed public opinion is not an oxymoron.

The Crown Court study found that the general view of the 25 judges surveyed was that

it was right to be aware of public opinion, but only proper in sentencing to take account

o f “ informed public opinion” .114 The media was rejected as a reliable source of this,

however most judges in that study thought that they were capable of identifying

“ informed public opinion” , and further, that a majority believed that it coincided with

their own opinions.115 The Crown Court study also questioned judges in relation to

their reactions to public comment, and found that where the comment has been

unfavourable the judge discounted it, whereas if it was favourable, the judge was not at

all dismissive.116 The judges were also described as seeing themselves as filters of

public opinion, between popular calls for increased severity, and the more moderate

“right thinking member of the community” .117

110111112

113

114

115

116

117

See discussion at 3.3.2, below.

Judge Y. See full comment above.

Sir Guy Green, “The Concept o f Uniformity in Sentencing” (1996) 70 Australian Law Journal112, 116.

Ibid. See discussion of the issues involved in Shute, above n 82.

Crown Court Study, above n 80, 31. That study also noted that a majority believed that the public were demanding more severe sentences, and that they had a role to play in resisting such demands.

Ibid 31.

Ibid.

Ibid 32. A similar view is impliedly embraced by Adams J in Jurisic.

415

What was also of interest in the Crown Court study was the information obtained about

the educational and social background of the judges interviewed. Eleven out o f the 18

judges who completed questionnaires in that study had attended Oxford or Cambridge,

with 13 in total having attended public school.118 In contrast, no personal information

could be collected from participants in the present study due to ethical considerations.119

The authors of the Crown Court study concluded that:

It might be argued that the judiciary is composed of persons from a relatively

narrow social background who, through concepts such as “ informed public

opinion” , project the views of their own social groups into their sentencing

decisions.120

Although such data were unavailable in the present study and therefore no conclusions

could be drawn on the social and educational background of the judges who took part,

the Crown Court study suggests that it is beneficial to have judges sitting on the bench

who come from a diverse social, cultural and perhaps also gender background.

The judges in this study also made the distinction between “ informed” and by

definition, “other” public opinion.

There is a world of difference between “real” public opinion and certain121individuals in the media who say what that public opinion is.

If public opinion is informed this is OK. But how do we know what it is? It is

only the extremists who make their views known. Even if there was ai 99

referendum, we wouldn’t necessarily know the truth.

Ibid; “public school” in the English sense, meaning privately educated.

Some information about the educational background o f judges is publicly available in Queensland, but only from judges who choose to reveal it, and mainly from Supreme Court justices. As fewer Supreme Court justices as a proportion o f the total chose, or were available, to participate in this study, what little information is available is o f little or no validity in the context o f this research. (In other words, the information available may not be from the judges who took part in the study.) Additionally, o f the limited information that is available, there are no discernible patterns as were evident in the Crown Court study.

Crown Court Study, above n 80, 32.

416

123The problem with public opinion is that it is largely uninformed.

Certainly informed public opinion plays a role in establishing the appropriate

range o f sentences for various offences, because the public must have faith in the

criminal justice system. I f judges consistently imposed sentences that the

informed public thought were ridiculous, the community would lose faith in the

system: it would lead to vigilantes, even anarchy, and the criminal justice system

would break down.124

The views of the judges in the Crown Court study on the importance o f informed public

opinion were largely repeated in the present study where the concept of “ informed

public opinion” was frequently mentioned, particularly in relation to “ informed” or

“ real” public opinion and public opinion in general. This suggests that judicial views on

public opinion are fairly constant, as the findings from the Crown Court study were

largely replicated, almost 20 years apart, and in different countries. It is also highly

unlikely that any of the Queensland judges would have heard of, or had any familiarity

with the Crown Court study. It is also unlikely that there would be much interchange of

ideas between the Crown Court Bench and the Queensland judiciary. The surprisingly

similar results suggest that judicial attitudes (at least on this topic), are constant in

comparable jurisdictions and at different periods of time.

3.3.3 Can public opinion be determined via the media?

Many judges in the Crown Court Study felt that public opinion, so called, was generated

by sections o f the press, and criticised the media for selective reporting. However a

number o f judges in the present study were prepared to accept that public opinion could

be ascertained via the media. This was a particularly interesting response, given the

121122123

124

125

Judge A.

Judge C.

Judge V.

Judge F.

Crown Court Study, above n 80, 31.

417

numlber of judges in the study who so vehemently criticised the media’ s role in

sentencing.126 * Comments were as follows:

I determine public opinion through the media but you must contrast a beat-up

with genuine concern. You get to do this by contact with people such as1

community groups, and talking with ordinary people.

Judges can discern public opinion by reading the papers and talking to their

families and friends.128 *

The only public opinion you have is what you intuitively believe and what the 1 70

media tells you it is.

The first question is where do you glean public opinion from? If you are going

to rely on print or electronic media, I would place more emphasis on letters to

the editor.130

One becomes aware from reading the papers as to public opinion as far as break

and enters or violent crimes are concerned. It is a matter then for the courts

particularly the Court of Appeal to lay down the appropriate range for the type

of offences.131

Five judges therefore indicated that they use the media to gauge public opinion, and in

one case letters to the editor were suggested as a useful method. If however media

reports are inaccurate or one-sided, which could easily be the case, the information

relied upon by the judge to form a view of public opinion may not be accurate.

Reliance on the media for that type of information has the potential, by its very nature,

for inaccuracy, exaggeration, and misinformation.

126

127

128

129

130

See part 5, below.

Judge Q.Judge S.

Judge A A.

Judge EE.Judge L.131

418

3.3.4 Following the Court of Appeal

While some judges relied on their own views of public opinion, or views gleaned from

the media, other judges in the study accepted that it was the responsibility of the Court

o f Appeal to indicate public opinion.

I try to read all decisions of the Court o f Appeal and if the Court of Appeal says

something which reflects their view of public disquiet, I would regard that is fair1 T?

enough and take it into account.

You can’ t deny that public opinion has an impact on the sentencing process.

The Court of Appeal is sensitive to public opinion, and because they are, we1

have to be.

On the other hand, the Court of Appeal was seen by one judge to be inappropriately

influenced by public opinion.

The Court o f Appeal is far too swayed by public opinion. There is a limited role

in sentencing for community concerns but they can’ t become too dominant. I f

you start allowing the lynch mob mentality it will be a bad thing.134

If hovever the judges are relying on the Court of Appeal to indicate public opinion, the

same issues arise as to how the Court of Appeal judges are able to ascertain that

opinicn; including whether reliance is placed on their own friends and acquaintances, or

the media as a source of information.135

132

133

134

135

Judge A.

Judge T.

Judge CC.

As noted in chapter 3, Supreme Court judges (some of whom participated in this study), also sit on the Court of Appeal.

419

3.4 Public opinion and appeals

In Queensland, only the Attorney-General can lodge an appeal against inadequacy of

sentence.136 The Attorney-General is however an elected politician and member of the

government of the day, and thus not an independent officer. In Queensland the

Attorney-General is also the Minister for Justice.

Some judges expressed the view that public opinion had more of a part to play in

appeals, rather than sentencing hearings at first instance, particularly as public opinion

was perceived to be sometimes taken into account by the Attorney-General in deciding

whether to appeal a sentence which might be perceived to be manifestly inadequate.

It is really in appeals that public opinion plays a role. Public opinion particularly

plays a part in Attorney-General’ s appeals. The role o f the Attorney-General

should be to moderate public opinion, particularly where the public opinion is

uninformed. This is not necessarily the case however. In most instances the

public don’t know of sentences until after they are imposed, thereby it is

normally impossible for public opinion about a particular sentence to be taken137into account.

Another view was also expressed however suggesting that because of the effect of

pubfc opinion, that the right of appeal should be vested in an independent statutory

officer, the Director o f Public Prosecutions (as in New South Wales), rather than in the

Attorney-General who is a politician and therefore subject to re-election and possible

politcal pressure.

Attorneys-General are influenced by public opinion, and this is why I believe

that the right of appeal should be in the Director of Public Prosecutions, not the

Attorney-General.13 8

136

137

138

Section 669A Criminal Code (Qld).Judge D.

Judge BB. Cf the situation in New South Wales where this is the case.

420

A number of judges expressed the view that media pressure influenced the Attorney- General in deciding whether to appeal a sentence to the Court of Appeal:

The media will seize upon issues eg, child abuse as something which may interest their readers. To the extent that the media affects public opinion then it may well be that the Attorney-General appeals to the Court of Appeal to set a higher parameter. It is more likely that the Attorney-General would react than a judge.139

Media plays a substantial part in sentencing. I have no doubt the Attorney- General appeals when the media puts sufficient pressure on him or her by expressing what is said to be the public opinion.140

I think the Attorney-General whoever they are, is greatly influenced by the media.141

Under the current system in Queensland, the Attorney-General as an elected politician is in the position where they may be swayed by public opinion. If it is only based on newspaper reports however, public opinion may not be properly informed. The Director of Public Prosecutions is an independent law officer who should not be swayed by inappropriate pressure to act in a particular way.

3.5 What impact is public opinion having on sentencing?

If public opinion is able to be determined and taken into account by judges in sentencing offenders, the next question is what impact does public opinion have in the sentencing process? Does it cause an escalation of sentencing severity, or are there more subtle effects? A number of the judges commented on this.

139

140Judge L.Judge AA.

421

In the words of one judge:

The difficulty is in finding out what part public opinion plays. It’s only an influencing factor.142

Some judges felt that public opinion had an important effect on sentencing:

If you can accurately determine public opinion, it must have an important effect, and it must express the views of the community. This has been brought to the forefront with the conviction of priests for interfering with children.143

A number of judges felt that they should not allow public opinion to influence them.

Judges must be careful and must respect public opinion and not be a slave to it. It is important to understand public opinion and what is the public view on this.144

Judges wouldn’t do something differently because of public opinion, but you are always conscious that certain cases will attract attention with the need to be particularly careful to explain adequately why the particular sentence was imposed.145

Public opinion is always in the back of your mind, but you have to be careful not to let it influence you.146

I am not really influenced much by public opinion. It is more a job for politicians if they want to respond to public opinion. It is not our job as judges

141

141

h:

14*14:

Judge B.Judge C.Judge AA. At the time of the study, a number of prominent cases of sexual abuse against children by members of various religious organisations were going through the courts. Many of these cases involved incidents which had occurred many years before the prosecution was launched.Judge H.Judge V.Judge E.14(

422

to do so. Newspapers have their own job to do, but I don’t take much notice. They are there to sensationalise things and can be caught out distorting things. You can’t as a judge be influenced by what you think the newspapers will say.147

Courts are always conscious of public opinion, but can’t allow public opinion to sway them from imposing the sentence that they consider is appropriate having regard to all of the principles in the Penalties and Sentences Act, and the other considerations. I can understand that if your house happens to be trashed by a 16 year old that no penalty is going to placate you. That person is probably not going to be satisfied by the death penalty. It doesn’t mean that the 16 year old is to be harshly treated. Again it may be, and I think this is happening with a lot of juvenile sentencing, making the victim aware by confrontation, and this can help allay fears that a lot of ordinary people have about ordinary sentencing.148

Secondly,149 it is equally important for courts not to be influenced by any changes in public opinion which might be ephemeral or wrongly based or emotive. The court has to try to look at general or core values and resist any temptation to fix a sentence on the basis that it might be a popular one and meet the mood of the moment, or to win the approbation of the press.150

In general I am very wary about public opinion.151

Sometimes the families of victims are blind to wider considerations, as they usually just want someone punished. As a judge you can’t just pander to that. Sometimes they are just looking for satisfaction that justice is done, and really want someone to go to prison. There are really two levels, the public at large, and the public that are related to the crime in some way.152

Judge O.Judge DD.The first point mentioned was that the courts should be in step with community values. This is discussed below.Judge W.Judge A.Judge M.152

423

Some of the judges were therefore of the opinion that public opinion is something for the judge to be conscious of and respect, but that it should not overtly affect their decision-making. One judge referred to the consciousness of cases attracting attention and the need to carefully explain the reasons for sentence. This public oversight of the process is an important one and it is critical that the public understands why a particular sentence is being imposed; as without this understanding and acceptance, confidence in the sentencing process will be lost and dissatisfaction will result.

4 The court, the sentence and the community

The interaction and relationship of the courts and the community can be a difficult one. Many judges in the present study recognised that public confidence in the system is crucial and that if this confidence were lost there would be important ramifications for sentencing and the justice system as a whole. The importance of serving community expectations was expressed by the following comments:

The sentence imposed must be within a range that a fair minded, properly informed member of the community would find acceptable: otherwise the public will lose faith in the criminal justice system.153

I believe that that sentencing judge should be imposing justice according to law. People must have reasonable confidence in the system.154

You can’t be too precise or too subtle in sentencing; you must serve the community’s legitimate expectations to an extent. This isn’t necessarily represented by the most noisy members of the community.155

Man/ judges expressed a desire for there to be more public understanding of the court process.

153

154Judge F.Judge Q.

424

I would like to see more legal students and the public to come and see the sentencing process in court in operation, but I would make them listen to the whole lot. I want to start a dialogue which is not too hung up with judicial independence. We need to hear everyone’s point of view.* * 156

This discrepancy [between what goes on in court and what is perceived to happen] calls for better education from the public as to what is involved in the sentencing exercise.157

The need for better understanding by the public of sentencing will not be served until there is better information provided about sentencing, and generally better education about the process, as pointed out by two of the judges. The need for the courts to better communicate what they are doing was also pointed out by the Victorian Sentencing Committee.158

The best recent example of effective communication between the courts and the community was the case of R v Jurisic159 and the on-going system of guideline judgments in New South Wales. The New South Wales Chief Justice widely disseminated information about the new guidelines system in newspapers as well as distributing an information pack to the profession and the media, and substantial positive publicity was generated about the case.160 In this way, the public were far more likely to understand the process, and as a result, accept that the courts were actively and appropriately carrying out the sentencing function.

Judge J.Judge E.Judge R.Victorian Sentencing Committee, Sentencing: Report o f the Victorian Sentencing Committee, Attorney-General’s Department, Victoria, Melbourne, 1988, 42.(1998) 45 NSWLR 209, and see in discussion on guideline judgments in chapter 5 at 4.2.Zdenkowski, “Sentencing Trends: Past, Present and Prospective” , above n 3, 177; Kate Warner,“Sentencing Review 1998” (1999) 23 Criminal Law Journal 364, 366-369.

4 2 5

4.1 The judge as representative of the community

Three judges pointed out that the judge was the representative of the community in the sentencing process:

I feel that a judge represents the community in what is going on, this contrastswith vigilante groups. The judge is a replacement for the community; a state

1 1approved system of punishment.

The judge is there as the representative of the community. I have to keep that in mind. I cannot apply idiosyncratic views. I try to have my view correspond with what I feel would correspond with what most right thinking decent people, not stupid people who are upset by hysterical media rubbish or political opportunism, of careful intelligent people who have some knowledge and understanding of the situation, but not necessarily thinking as I do. And so I deliberately modify my views if I think they would not correspond with a reasonably broad approach. I don’t think l am endowed with unique enlightenment. It doesn’t mean I run with the crowd. Sometimes I impose sentences I know will be met with criticism by people who want to abuse public comment. You steel yourself to do what you have to do, not bending one way or the other, to forces you think are not proper forces.162

Judges stand between the Government or the state and the man in the street.163

These comments emphasise the importance of the judicial role, particularly as the representative of the community in order to express to the offender the community’s disapproval of their actions, and then to sentence the offender on behalf of the state, and the community as a whole. Again, the way in which this role is carried out is critical in order to gain public acceptance of the process. 161

161162

Judge M.Judge X.

426

4.2 Community values

Some judges drew a distinction between public opinion and community expectations about the sentencing process on the one hand, and sentencing as an expression of community values on the other.

There are two things to bear in mind when talking about public opinion. Firstly, i: is important that what the courts do should, to a considerable degree, be in step v/ith community values.164

What is important is an expression of community values.165

When sentencing I don’t want to sound pompous or pretentious, but I need to express to the person the community’s view that their conduct is wrong.166

There are two things to bear in mind when talking about public opinion. Firstly, ii is important that what the courts do should, to a considerable degree, be in step v-ith community values. Secondly, it is equally important for courts not to be influenced by any changes in public opinion which might be ephemeral or vrongly based or emotive. The court has to try to look at general or core values and resist any temptation to fix a sentence on the basis that it might be a popular

I f\lcne and meet the mood of the moment, or to win the approbation of the press.

The community is not necessarily going to be well informed by the media. Community values are an informed expectation. I think if the community had all the information I had when sentencing, this is what they would expect in the sentencing process. It is important to be responsive to community values, but rot ill informed criticism. It is important to be responsive to community values,

163

164

165

166

167

Jidge EE. Jidge W.Jidge P.Jidge D. Jidge W.

4 2 7

but also important to be impervious to ill informed public pressure. The expectation is the expectation of a sentence you believe the community would want if they had all the information you have within the parameters allowed by the Court of Appeal.168

Community values was a concept which had substantially more acceptance among the judges than public opinion, which was perceived as more of a negative influence. Community values were more likely to be seen as an important influence. The link with the purposes of denunciation in s 9(1 )(d) Penalties and Sentences Act was clear, and means that it is important that the sentence expresses disapproval to the offender and makes a statement that the offender’s behaviour is inappropriate and out of step with community values.169 * *

4.3 Community expectations

In a similar way, a number of judges expressed the view that it was the role of community expectations which was important, rather than public opinion.

Public opinion plays no part in the sentencing process, but as a judge you are aware of community expectations. .. .1 find it helpful to find out what people are thinking. It is the community expectation of a sentence rather than public

1 70opinion which is important.

171A sentencing court must impose a sentence within community expectations.

If the media shapes public opinion (if this is in fact what they do) does it actually reflect community expectations? There is community expectation placed on juries as well, particularly in high profile trials.172

168

169

170

171

172

Judge P.See also discussion on restorative justice in chapter 6 at part 9.Judge D.Judge F.Judge K.

428

I always try to think, especially when in a country town or provincial city, what

would the reasonable reaction of these people be to what is going on in the

courtroom. I can’t always accept that however and take it into account, but it is

important.

There seems to be a loss of interaction within communities in Brisbane. But this

is in contrast with the situations in country towns or provincial cities, where the

judge is very conscious of the community. One is also more conscious of the

police in country towns. One question I sometimes ask myself is “what was the

police expectation?” The police are being looked at as aspects of the

community. The courts can’t just do what the police want, but if the police have

a perception that courts are weak, police may take the law into their own hands

by verballing offenders or beating them up. There has to be police confidence in

the system.173

Community concerns were perceived to cause problems however:

There is a limited role in sentencing for community concerns but they can’t

become too dominant. If you start allowing the lynch mob mentality it will be a

bad thing. The media can report things in dishonest ways, and this can prompt

Attorney-General appeals.174

There were also concerns expressed by the judges where community expectations were

unrealistic:175

Courts are the body of the criminal justice system, but they cannot solve

society’s problems.

Similarly, courts could not solve society’s problems at the time of the Industrial

Revolution. We are currently going through a major change in society

somewhat similar to the Industrial Revolution.176

173

174

Judge M.Judge CC.

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The courts can’t fix society’ s problems.177

In summary, the comments on community values and expectations emphasise the need

for a balance between the sentence as a denunciatory expression of community values

and expectations, and a sentence according to law. Provided that this balance is

properly achieved (and the community perceives that it is so), public satisfaction with

sentencing will generally follow. There was a need expressed however to temper these

expectations to avoid a “ lynch-mob” mentality.178 If the community expects the

sentencing process alone to prevent crime and generally fix society’ s ills, then it is

doomed to disappointment.179 It is fair to say that there is room for considerable

improvement in the relationship between the courts and the community.180

5 The Media5.1 Introduction

In 1989, the Report of the Commission of Inquiry into Possible Illegal Activities and

Associated Police Misconduct (“ the Fitzgerald Report” ) was released at a critical time

in the history of Queensland.181 The Commission heard of entrenched corruption in the

police force which had spread to other institutions, including the Parliament. It was the

print and electronic media that reported on these allegations and began the

investigations, as prolonged complaints through formal complaint channels had been

virtually ignored. The importance of the media role in relation to public institutions was

highlighted, and the Fitzgerald Report had this to say about the media:

See also discussion of this under restorative justice, and the discussion on victims in chapter 6. Judge J.Judge EE.

On the impact of community demands on the sentencing process, see Katie Long, “Community Input at Sentencing: Victim’s Right or Victim’s Revenge?” (1995) 75 Boston University Law Review 187.

See also chapter 1 at 1.1.See also Gleeson, above n 7, in particular at 16.

430

The media is one of the most important and effective mechanisms for the control

of powerful institutions and individuals by reason of its ability to sway public

opinion. Those who wish to mould public opinion must do so largely through

the media.182

The media has an ongoing fascination with crime and deviance. The sentencing of

offenders is one of the most visible components of the entire justice system, thus

ensuring wide public interest in the process and providing a steady stream of

controversy. Sentencing, while newsworthy, is normally reported on a selective basis,

with the more sensational or contentious stories gaining the most coverage. It is185impossible for a television or radio news story to report anything but the barest facts.

Even if the entire sentencing process were televised, it would not necessarily mean that

the public would gain an understanding of the process, as they would not be aware of

rules and procedures governing the process from behind the scenes. In addition, the

media is not the only source of information about the criminal justice system, however1 Qyr

it would be the main source.

The media are not obliged to report the story in context, which can also lead to

misunderstandings about sentencing issues, as well as fear of perceived risk of

victimisation.187 Commentators have pointed out the strong influence that the media

181

182

183

184

185

186

187

Report of a Commission of Inquiry Pursuant to Orders in Council, Commission o f Inquiry into Possible Illegal Activities and Associated Police Misconduct, Queensland Government, Brisbane, 1989 (‘The Fitzgerald Report” ); see also discussion in chapter 2.Ibid.Janet Chan, “Systematically Distorted Communication? Criminological Knowledge, Media Representation and Public Policy” (1995) 28 The Australian and New Zealand Journal o f Criminology 23. See also discussion in Mark Israel, “Telling Stories of Crime in South Australia” (1998) 31 The Australian and New Zealand Journal o f Criminology 213; and generally Peter Grabosky and Paul Wilson, Journalism and Justice: How Crime is Reported, Pluto Press, Sydney, 1989 (particularly the relationship between the police and the media).Ashworth and Hough, “Sentencing and the Climate of Opinion” , above n 53, 779; Keith Soothill and Chris Grover, “The Public Portrayal of Rape Sentencing: What the Public Learns of Rape Sentencing from Newspapers” [1998] Criminal Law Review 455; Grabosky and Wilson, above n 183, chapter 2.See generally, Grabosky and Wilson, above n 183, chapter 2; and also discussion of the limitations of media reporting of court hearings by Adams J in R v Jurisic (1998) 45 NSWLR 209,255.See discussion in Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987, 95; Victorian Sentencing Committee Report, above n 158, 609-610.Ashworth and Hough, “Sentencing and the Climate of Opinion” , above n 53, 779.

431

has on public opinion, with one leading United States criminologist asserting that public

policy is largely driven by the media, instead of social science research.188 *

Opinions in an article by Sir Guy Green, (a retired judge), and another by Judge John

Hassett (a County Court judge in Victoria),190 reveal an analysis of media reporting of

sentencing, indicating views that reporting is often selective and leads to distortion of

the facts. Both state that the public would be better informed, and thus their perceptions

of the sentencing process more favourable, if more information on sentencing was made

available. Although Judge Hassett suggests that consideration be given to the

establishment of mechanisms which will enable the task of maintaining and enhancing

public confidence in the courts to be undertaken in an efficient and effective manner; he

does not suggest how this could occur.191

In a recent article in a professional legal journal by a Queensland District Court Judge,

Judge R D Hall, the media was said to have “created a climate of denigration of the

judiciary” , and the “judiciary has allowed this climate to prevail by maintaining a stony1

silence in the face of criticism” .

It was m discussion on the media and their role in sentencing that the judges in the

present study had the most to say, and their views largely were in accord with the

published views of the three judges above. It would be fair to say that the judges spoke

out more strongly on this issue than any other issue explored in this study. Some of the

judges drew an explicit link between public opinion and the media’ s reporting of stories.

101Public opinion is driven by media opinion.

188

189

190

191

192

Kathleen Daly, “Celebrated Crime Cases and the Public’s Imagination: From Bad Press to Bad Policy?” (1995) 28 The Australian and New Zealand Journal o f Criminology 6, 6. See also commentary on this article which argued that the direct impact of media reports on public policy was less than commonly believed: see Chan, above n 183.Green, above n 112.Judge John Hassett, “Sentencing and Public Perception of the Courts” (1997) 9 Judicial Officers Bulletin 57.Ibid 58.Judge R D Hall, “A Judicial Response to a Sensationalist Media” (1998) T he P r o c to r 22, 22.Judge P.193

432

Public opinion is dangerous particularly where the local newspaper is “redneck”

and intolerant, which is the case here.194

The media is an enormous influence in the sentencing process. The media is

responsible for the huge incarceration rate in recent times.195

The media does play a role in shaping public opinion about sentences that have

been imposed or should be imposed. As a judge you can’t allow yourself to be

influenced by the popular press.196

In some cases, it was felt that the media was attempting to influence specific sentences:

Sometimes there is what appears to be an attempt to influence the sentence by

the media. This is hard forjudges. I would emphasise this doesn’t happen very

often, and is restricted to rare cases. Judges don’t particularly want the media to

condemn what they are doing; however the media don’t necessarily set out to do

this.197

5.2 The role of the media in the sentencing process

Many of the judges interviewed felt that the role of the media in commentating on

sentencing could be, and often was, a positive one.198 It was seen by some as a valuable

method of passing information on sentencing to the general public, and performing an

educative function.199 The media was seen in a positive light by a minority of judges,

particularly where that particular judge had made positive efforts to co-operate and

liaise with the media.

194

195

196

197

198

199

Judge D.Judge B. Judge N. Judge B.See also earlier discussion on determining public opinion via the media at 3.3.3.It has also been said that the crime news can also assume the role of a morality play, and thatnews coverage can reflect and reinforce the prejudices of Australian society: Grabosky andWilson, above n 183, 14.

433

One judge saw the role of the media as a positive one, as part of the checks and balances

in the system:

It is good to have judges’ sentences being scrutinised. If we are being watched,

we will be more careful.200

Some judges saw the media as having a role as a catharsis for victims:201

People are also encouraged when doing television interviews. Maybe a

television interview or media interview performs a role for them; maybe it is

part of the cleansing process, or maybe it helps them from their perspective.202

One judge expressed reservations about the extent of media influence:203

It is hard to put your finger on what role the media have. I often question the

extent to which the public believes what they hear on the electronic media or

read in the papers. I suspect that the average person thinks that what they hear

or read is fairly unreliable. However because of human nature, perhaps we tend

to believe what we have sympathy with. Perhaps people who are better educated

and more knowledgable about the issues would be more sceptical, and the

general public would be more inclined to believe what they read.204

And also this comment:

The press sets up a hornet’ s nest with respect to particular offences, and judges

must apply their own appreciation of how serious offences are. Judges should

guard against the hysteria; it is something judges need to be aware of and guard

200201202203

204

Judge G.See further discussion of victims and catharsis in chapter 6 at 9.4.Judge O.

Cf Chan, above n 183.Judge W.

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against. Judges should impose a sentence which is appropriate and should have

the courage to do that.205

5.2.1 The media as a conduit of information

Some judges saw the media as a valuable, and often only, method of passing on

information to the public about particular cases, or sentencing in general. Some of the

judges spoke of their efforts in keeping the media properly informed about cases before

them, which resulted in better public awareness and understanding of the sentencing

process.

If I have a case that is high profile, I will ensure that the media have timely

access to the transcripts of the sentence or judgments. Often the cases can’t be

simplified, but we can as judges go to trouble to express concepts in ways that

can be understood and expressed in a newspaper article. It is also possible to

refer the media to parts of judgments which are useful and may give a summary

of the case. I don’t go out of my way to court the media, but there is no point in

making their job difficult. In keeping the media fully informed there are spin

offs in increased public awareness and understanding of the system, and thereby

assisting in making public opinion better informed.206

It ensures that you stay careful, and sometimes if you want to send a message,

you can do so through the media, but it is hit and miss. They tend not to pick up

the bits that matter. If, for example, you want to point out that the accused has

done some things that might turn him around, or you may wish to give credit to

some community organisation which has assisted, the media will never support

that. They just want to report the circumstances which they think are relevant.

The media has a central role in reflecting the courts to the public and the public

to the courts. The media is the mediator between the courts and the public; it is

important that the judge and the community realise that the media may for

205

206

Judge Y.Judge V.

435

example be conducting a campaign, perhaps helping them to sell more

newspapers. For example, if you go to a victim’s relative, say someone who has

been raped, of course they would say that the person should be punished in

retribution for the wrong. This is why the state punishes on behalf of individual

victims.208

Sometimes in a controversial case or one that I want a message to get through,

and there are press in the court, I will make remarks which I intend to be quoted

and it is appropriate that they be quoted. Normally however I am very careful in

what I say.209

One often stimulates discussion in the press by saying something that is

controversial. The comment in court may not be something that the judge

believes; for example, I might say “why shouldn’t this person go to jail for 15

years?” in order to stimulate discussion. This doesn’t mean that I would be

contemplating giving the person 15 years’ jail. This can sometimes generate

headlines but it has been inadvertent. Sometimes such a provocative statement

is not really what the judge is thinking at all. Sometimes comments are taken

vastly out of context, where the judge might be quoted for example, or acting on

a psychiatric report.210

Some judges saw the media as having a positive and constructive role to play in

informing the public about sentencing: “There is an important role however in the

media for informing the public about the process” .211

While some judges saw media coverage as potentially useful if it occurred, others made

a deliberate contribution in the interests of disseminating important information to the

public.

2C7

208

2C9

210211

Judge G.Judge P. Judge A.Judge C.Judge I.

436

If the press is going to misrepresent the situation, judges should explain what

they are doing. Courts should look at some way of explaining to the public

sentences which have fallen into disrepute. I ’m not sure how this can be done212however, as you can’t force the press to report sentences in full detail.

There is a lot of scope for educational articles to be published in the media.213

There is no way in the wide world that people are going to find out what

happens in court unless it is reported in the media. The media should do more to

report sentences and I can’t see why they can’t have a page once a week in the

newspaper where they publish an account of certain court proceedings. In

criminal cases they could publish perhaps a potted version of the circumstances

of the offence and the facts, and any specific comments by the sentencing judge.

These could be similar to reports in the Times Law Reports published by The

Times in London.214

Although such a proposal is a positive one, it does have potential drawbacks, depending

on the selection and quality of analysis of the cases printed. Local newspapers in

provincial cities and country towns frequently print fuller reports of criminal cases than

occurs in the cities, however these reports can be denunciatory in tone and do not

necessarily contain a sophisticated analysis of the sentencing process.

Many judges therefore saw the media as playing, or potentially playing, a positive role

in the sentencing process, as a channel for information between the courts and the

community. This role is a critical one in terms of building and maintaining public

confidence in the court system, and is perhaps a key to community satisfaction and the

return to public confidence in the sentencing system.215

212213

214

215

Judge Y.Judge E.Judge EE.

See discussion by Adams J in R v Jurisic (1998) 45 NSWLR 209, 255.

437

5.3 Criticisms of the role the media is playing

Despite a number of judges seeing the role of the media as a positive one (as discussed

above), generally the judges were intensely critical of the way in which the media was

using its powerful voice to condemn the way in which courts are going about the

business of sentencing. Particularly mentioned was inaccurate and selective reporting,

inappropriate criticism and sensationalism.

I find the media unhelpful, inaccurate and provocative. It is unhelpful to the216community generally, as it creates a climate of fear which is unjustifiable.

Sometimes judges don’t have much alternative to do what they do, and are217pilloried in the newspapers.

The media plays an inadequate role in the sentencing process. It often fails to

report accurately. It tends to concentrate on the sensational and to emphasise

those aspects of cases. It lacks a complete balance.218

We have a rancid media which is intent on debasing the office of a judge, and

this is regrettable. We have also reached the stage where there is too much

informality in dealing with the courts and the office of a judge. It is totally

flawed the way in which the media deals with matters which go in court. The

media wants to decide the cases itself.219

The media doesn’t play much part except as an irritant after the event - with ill

informed criticism. It is an evil that we have to put up with, however the

alternative is worse ie, excluding the media from the court.

216

217

218

219

Judge E.

Judge O.

Judge J.

Judge T.

438

The media doesn’t play a positive role in the sentencing process, however they

could in theory. But the way in which they operate now shows that they are not

interested in constructive debate, rather only to sensationalise the issues. It is

impossible for TV and radio to properly report a sentence in a 30 second grab.220There is no prospect of debate with these reporting methods.

221The electronic media is more of a problem; they are more insidious.

5.3.1 Quality of reporting by the media

As has been indicated in some comments thus far, the perceived poor quality of

reporting came in for substantial criticism from many of the judges in this study. There

was a feeling that reporting was selective and sometimes biased. Many of the judges

specifically commented on this aspect.

The press has been very poor in conveying the story of what goes on in court;

they often tell half the story which makes it appear that the person has been

inadequately punished. They are not giving the proper reason for the sentence.

The media puts a lot of pressure on judges to increase the penalties. The

pressure comes from the press and victims’ groups. You feel it more when you

are sitting in provincial cities where you become more a part of the222community.

With politicians, the media and sometimes academics, there is a focus on the

prosecution facts, but sentencing is more complex than that. The judge has the

overall responsibility, however each party before the court focuses on

themselves; for example the victim, the prosecution and the defence. The

sentence reflects the interests of all of these, however it is unfair when the media

reflects only the prosecution view of what is going on before the court.

Sometimes the offence is the inevitable consequence of a life of deprivation.

The media focuses on the nature of the crime and what happens to the victim. 220

220221

Judge D.Judge I.

439

An appreciation is lacking of an understanding of why the person did it. All of

these things have a profound effect on the sentence. The public seems to think

that sentencing is a one sided exercise, but in fact the sentencing judge juggles

all of the interests.223 *

The media often does not give a fair report of a sentence and as a result the

public is not properly informed. I would hope judges do not sentence on the

basis of comments in the Sunday papers! ...It is essential that the courts are

open to the public and subject to public scrutiny. One difficulty is that media

reports are often not accurate. Sensational reporting can influence public

opinion unfairly. The power of the media needs to be exercised responsibly: it isi 274open to abuse.

The media, in order to get a story will often ask the victim or their relatives, or

the relatives of the offender for comment. These comments are usually

emotional, and of course one sided in nature, and will make good news. ...The

media is deceptive, misleading and sensationalist. They have to sell papers. I

wouldn’t expect the media to print the whole of the process, and I suppose if

they did it would be too boring anyway. We are unlikely to get fair reporting

unless the whole of the sentencing process was published.225

Newspapers are playing an enormous role in public opinion which is very

negative. The aim seems to be to “get the profession” and is out of perspective.

The ways that the newspapers operate don’t express public recognition of the

strength of the system. They do a huge amount of damage.226

The media catchcry is read by politicians and prompts them into action. The

difficulty is that the media have a lot to answer for and are sensationalist. How

many stories do they report on rehabilitation? It is a fallacy that bad news sells

222223

224

225

226

Judge U.Judge E. Judge F.Judge I.Judge M.

440

newspapers. The newspapers are attempting to sell newspapers by turning crime

into entertainment. There are far more good people being rehabilitated and these

are not being reported. Until the media gets the view that we have to empty the

jails, we won’t get anywhere.227 *

The media have a huge role to play in the sentence. The Courier M ail seems

to be devoting huge space to court reporting. That newspaper has done a huge

disservice to sentencing over the last ten years. They demean the legal process

in the public eye to no good reason. They tend to sneer at things they don’t

understand in Queensland and are very negative.229

The public is only told what is going on in the courts though the media. The

media is irresponsible about reporting cases. Classic cases are dangerous

driving, where the court looks at the consequences rather than the act. If you ask

the relatives of someone who is a victim about the penalties, they will say they

are far too light, whereas if you ask the relatives of someone who is in court as

an offender, they will say they are far too heavy.230

The quality of reporting is very poor. I try to make sure that they report it right.

It is a question of what you say in court as a judge, and if they don’t report this

correctly, I get them (the media) into court and haul them over the coals. The

media are trying to reduce what happens in court to simplistic terms. What can

often take half a day in court will end up as a few lines.231

The media is irresponsible in their reporting of sentencing.232

227

228

229

230

231

Judge S.The Courier Mail is the only major Queensland newspaper.Judge M.Judge CC.Judge N.Judge E.232

441

Some judges noted the reasons for a lack of balanced reporting, and that sometimes

these were out of the control of journalists and the media. Journalists themselves have233pointed out that the issue is more complex than merely blaming “biased journalists” .

I wouldn’t expect the media to print the whole of the process, and I suppose if

they did it would be too boring anyway. We are unlikely to get fair reporting

unless the whole of the sentencing process was published.234

People tend to only hear about the cases which are unusually lenient, but this is

often for a specific reason; for example the plea in mitigation may be

particularly effective, or there are facts which the public don’t know about.

People get the idea of the normal pattern of sentencing from exceptional cases,

but they don’t have the full facts, for example maybe the offender pleaded guilty

to a lesser offence.235

If the media turned up more often to court then the public might be better

informed. It’s difficult however for reporters to take in everything that is in

court and report accurately on what goes on.

The comments by the judges on the quality of media reporting revealed perceptions of

unfar and negative reporting and a consequent effect on the way in which the public

view the sentencing process. If this is indeed the case, and many judges in this study

cons dered that it was, the way in which cases are reported is one of the most important

parts of the sentencing process. If cases are not reported accurately, the public gains an

inaccurate and unbalanced view of sentencing, and such reporting fuels suspicions,

already fertile as a result of law and order political campaigns, that judges are “too soft

on ciime” ; that criminals are “getting away with it” ; and “nothing is being done” .

233

234

235

Chris Merritt, “The Courts and the Media: What Reforms are Needed and Why?” (1999) 1 UTS Law Review 42, 42.Judge I.Judge A.Judge C.236

442

5.3.2 Media campaigns

Further to claims of inaccurate and unfair reporting, some judges characterised what the

media were doing as an orchestrated campaign.237 *

There seems to be a general campaign of denigration in the media, which seems

to go right across the board. There is an insidious campaign to diminish the role238of the courts in society. This potentially has disastrous consequences.

The media can also go both ways. Sometimes they are pushing for higher

sentences and sometimes lower, an example of this would be the current

Northern Territory laws and injustices as a result of those laws.239

Sentencing is a very troubled area; you have only got to read the various

commentaries in the media to see the discrepancies between what goes on in

court and what is perceived to happen. The media are probably to blame. There

appears to be a thinly concealed philosophy of payback. Having resort to

victims fresh after the sentencing to ask whether they are satisfied is really

mischievous. A sentencing judge is not even pretending to satisfy the victim,

however this appears to be expected.240

The Courier M ail in perhaps a subtle way is saying that public opinion demands

people be given denunciatory sentences. But is this public opinion? People I

speak to say that offences which happened 30 years ago are water under the

bridge. Some people think that it is almost outrageous. You only need one or

two people to write a letter to the press and that is said to be public opinion.

Usually they have a vested interest in the subject anyway.241

237

238

239

240

241

See also discussion on law and order campaigns at 2.3, above.Judge W.Judge B.Judge R.Judge AA.

443

5.4 The media and the courts

242It is a fact of life that the courts and the media do have a relationship.

It is increasingly being accepted that the relationship of the courts with the media can be

a valuable one, and that if carefully fostered, there can be substantial benefits for

increased communication and understanding by the general public of court processes.243

It is fair to say that the courts have an obligation to provide information in the interests

of accuracy, and that the media has an obligation to give balanced and fair reporting of

court hearings.244 The media is not, and should not be, a spokesperson for the

judiciary.245

Although at times they were uncomfortable with the issue, many judges in the present

study saw the relationship between the courts and the media as a necessary one, and

discussed ways in which that relationship could be improved. There was little support

for the view that the relationship was working effectively at the moment, but many of

the judges saw the benefits in improving communication, such as the following

comment:

With better communication between the media and the courts, the media should

understand the importance of the courts in the sentencing process and the courts’

wider role in maintaining the rule of law. The courts must ensure that the media

understand the importance of community respect for the court system. On the

other hand, the courts earn and maintain that community respect.246

Hon Daryl Williams, “The Courts and the Media: What Reforms are Needed and Why?” (1999) 1 The UTS Law Review 13, 13. The Honourable Daryl Williams is Attorney-General for the Commonwealth of Australia.See for example the discussion of this issue at: “How Courts Interact with the Media” , “The Law Report" Radio Broadcast, ABC Radio National, 10 November 1998(URL: http://www.abc.net.aU/rn/talks/8.30/lawrpt/lstories/lr981110.htm). The Law Report Program itself provides regular commentary and analysis of legal issues, including sentencing.Williams, above n 242, 15.Ibid.Judge F.246

444

The main method suggested by which this could be done was by the appointment of a

courts liaison officer. There have been many calls over the years, including from the

judiciary, for media liaison officers to be appointed to the courts in order to improve

communication between the courts and the media,247 * and a media liaison officer was in248fact appointed to the courts in mid 2000.

Many judges in the study spoke of the need for such a media liaison officer position to

be created as a conduit between the courts and the media. This was seen to be necessary

in order to achieve greater communication and understanding of the way in which

courts operate. It was perceived that if there was more accurate reporting, that many of

the misperceptions could be dispelled, and greater understanding gained of the

sentencing process. It was also seen as better facilitating the aims and purposes of

sentencing. If sentences were more accurately and fully reported, the public could be

assured that sentencing aims were being carried out. This would be particularly so in

the case of denunciation. It would also give some reality to the notion of general

deterrence. Without publicity of sentences meant to deter others, general deterrence

could be said to be somewhat of a pointless exercise.

Although many judges discussed the need for a media liaison officer, there was a sense

of frustration that insufficient government resources were provided and that there was

no impetus for this to occur.

I think that media liaison officers within the court are required.249

The courts in Queensland have no media liaison officer or community

information officer. It is easy for the media through mis-reporting, whether

See eg, Hall, above n 192, 23. See also comments urging such an appointment by the Chief Judge of the District Courts in Queensland in Chief Judge of the District Court, District Court o fQueensland Annual Report 1997-1998, District Court of Queensland, Brisbane, 1998, 21; and Victorian Sentencing Committee Report, above n 158, 615.By the end of 2000, it was too early to assess whether this appointment had made any difference to the relationship between the media and the courts.Judge E.249'

445

intentional or not, to make a sentence look ridiculous. This is an issue the courts

must address with priority. It is a difficult battle to win.250

There should be a media liaison committee and a media liaison officer for the

courts. This would cost less than an aborted trial.251 *

252In Queensland we should have a media liaison officer attached to the courts.

Having access to a court media officer may be a good idea and may be

helpful.253

Although a media liaison officer could be used strategically to improve communication

between the courts and the media,254 it is too simplistic however to assume that the

appointment of such an officer will instantly solve the current communication problems

between the media and the courts.255 For example, if such an officer were to further

explain decisions, this could itself lead to problems.256 * Clearly what is called for is a

comprehensive and well thought out approach where courts liaison officers are

considered as one of the options. An acknowledgment that there are problems in the

relationship between the courts and the media is an important first step, and realistic

solutions need to be developed and debated before implementation.258

250

251

252

253

254

255

256

257

258

Judge F.Judge I.Judge N.Judge V.See recommendations to this effect in Victorian Sentencing Committee Report, above n 158, 609-617.See also Parker, above n 2, 163 and 164 (Recommendation 4).Patrick Keyzer, “What the Courts and the Media Can Do to Improve the Standard of Media Reporting of the Work of the Courts” (1999) 1 UTS Law Review 150, 153.Ibid. See also Parker, above n 2, 164, where it is noted that it would seem impossible for a single officer to adequate cover all levels of a state jurisdiction; therefore it is critical that such appointments are adequately thought out and properly funded.This issue was discussed at a conference at the UTS Law School in Sydney in November 1998, which brought together senior members of the judiciary, government (including Attorneys- General), academics and journalists. The papers and panel discussions are published in a special issue of the UTS Law Review, entitled The Courts and the Media (1999).

446

5.4.1 Being more proactive

The judges also spoke of the need to become more proactive in their dealings with the

media, with one judge stating if the media didn’t report cases correctly, they would get

the media into court and “haul them over the coals” .259

Judges have to be proactive for the media to get the essence of what we are

talking about. In the days of the five second sound bite we have to simplify

what we are saying if it is not to be missed or misquoted.260

I have in the past invited people from the public to attend court and listen to the

whole of the sentencing process. This has changed their attitude.

If we just lie down as judges we will be kicked more. I intend to answer letters

to the editor in future. People are not going to write because they will be told

that they don’t know what is happening. Letters to the editor often show that

they clearly don’t understand the process.261

Taking an opposite view however, Sir Gerard Brennan, former Chief Justice of the High

Court, warns against such a response. He notes:

The dispiriting criticisms that are sometimes offered have led some judges to

think that they should undertake a public relations exercise to enhance the

judicial image. It is suggested that this is a mistake.

Sir Gerard also adds an important rider to the discussion on communication between the

courts and the media:

259

260

261

262

Judge N.Judge V.Judge I.Sir Gerard Brennan, “Why be a Judge?” (1996) 14 Australian Bar Review 89, 95.

447

It is one thing to inform the community of the service which the courts provide

in securing justice according to law and the way in which they provide that

service. That is an objective which enhances public understanding of the courts

to the benefit of the community. It is another thing to seek publicity in the hope

that media coverage will create a favourable image either for a judge, a court or

the judiciary as a whole. Such a hope would be quickly detected by both the

media and public. Public confidence must be earned by the regular work of

judges in the courtroom. It is the reality, not the image, which must sustain

public confidence.

6 The consequences: the courts under pressure

One potential effect of increased public scrutiny is that judges may feel under siege, and

come under pressure (or perceived pressure) to increase penalties in line with public

opinion. This also has the added potential to increase stress on judges and make their

already difficult jobs increasingly so.264 *

Strident public opinion puts judges under pressure. It brings added pressure to

the task of trying to balance different considerations in a sentencing process. If

a judge knows that if he or she sentences in a way they believe is correct, but is

likely to bring forth criticism in the media, they simply have to put up with it.

They must do what they believe is right and wear the comment.

Some of the judges in the study discussed their reactions to publicity in the media.

What is hinted at is the possibility of, even a fear of, publicity having adverse effects on

the way that the courts operate.

There is a danger that ill-founded criticism will make judges conceal what they

really think.266

See discussion in chapter 4 on judicial stress at part 5.Judge J.Judge C.

448

Not all judges saw this as a danger:

I do not react to every Courier M ail article or to the whim of the day.

The point was also made that the way in which reporting occurred meant that judges felt

restricted in what they could say in court. This has repercussions for the freedom and

independence of the judiciary. It may of course on the other hand have positive

consequences in keeping a watch over the courts.

I feel that I have to be careful what I say because of the “quotable bite” ; it’s very

superficial.268

It is important that this does not influence the sentencing process and that the

judge passes a sentence which is appropriate.269 *

The media puts a lot of pressure on judges to increase the penalties. The

pressure comes from the press and victims’ groups. You feel it more when you

are sitting in provincial cities where you become more a part of the. . 270community.

Sir Gerard Brennan, former Chief Justice of the High Court of Australia raised two

other difficulties which can arise when a closer relationship between the courts and the

media is being advocated.271 One is that individual judges cannot respond to media

inquiries in a way which might disqualify them in a future hearing; and secondly few

judges have the skills and inclination to maintain a relationship with the media which

“preserves judicial dignity and appropriate reticence while communicating an insight

into the work of the courts” .272 This adds weight to the argument that it should not be

267

268

269

270

271

Judge F.Judge E.Judge D.Judge U.Brennan, above n 262. Ibid 95.272

449

left to individual judges to undertake these tasks; and that there ought to be some other

mechanism for formal communication between the media and the courts.

7 Conclusion

The law and order debate in politics and the media has been increasing over the past

twenty-five years and shows no sign of abating. It is a popular election issue, and

appears to attract votes. The rhetoric which accompanies it is compelling, particularly

among disaffected members of society who feel more attracted to right wing policies,

and who feel disenfranchised by perceived left leaning assertions of “political

correctness” , a term with pejorative connotations for those who feel coerced and

threatened by rehabilitative and restorative policies. It is fairly clear that law and order

in all of its permutations, whether it be heavier penalties, mandatory jail sentences or

abolishing parole and remissions will continue to have popular appeal.

Whether or not public opinion should be taken into account directly by the judiciary in

sentencing remains an unresolved issue. The notion of listening only to “informed

public opinion” was an attractive one for many of the judges interviewed. How to

discover such informed opinion is far from clear. Being informed by one’ s social

group, neighbours and other community contacts were suggested. Less popular was the

notion of taking advice from newspapers or the electronic media, although one judge

suggested letters to the editor might be a fmitful source of advice. What appears to be

clear is that a number of judges are advocating the use of common sense in being aware

of community expectations and values and acting on these where appropriate. The

judges also spoke about genuine attempts to make themselves aware of these

expectations, but noted the difficulty of this while sitting in a big city. Suggestions

were made that this task was made much easier when sitting in a small community such

as a regional city or country town; either when on circuit, or as part of an appointment

to a regional centre.

What was also evident on the part of at least some of the judges (and perhaps

surprisingly so), was a genuine desire to take into account public opinion, at least public

opinion seen to be informed, where appropriate to do so. There was also awareness- by

450

the judges that public confidence in the sentencing system was crucial, and that more

education of the public about what occurs in court was urgently needed. There was

clear evidence of frustration, coupled with the perception that the courts can no longer

sit by and watch public confidence in the system ebb away. It was significant also that

there were very few or no doubts expressed by the judges about the sentencing system;

instead faith was expressed that if the public were to be better informed, they would

understand what was occurring, and gain more confidence and trust in the system.

Public confidence and trust were seen as needing to be returned to the sentencing

process.

Perceived media attacks on sentencing, and judges in particular, were condemned as

being unnecessary, unfair and undermining public confidence in the sentencing system.

Many judges noted a divide between how the public perceived sentences being handed

down and what was actually occurring. Although many judges recognised the

difficulties faced by the media in accurately reporting sentencing hearings together with

the impossibility of reporting in full all hearings, it was felt that improvements could

still be made. The point was made that while reporting continues to be selective,

inaccurate, and too brief to convey all meaningful details, damaging misconceptions

will continue to occur.

The media was seen by the judges as a valuable tool to convey information. Some

judges were proactive in releasing information and attempting to ensure accurate

reporting, and these judges appeared to have a happier relationship with the media.

Where judges said that they had been attacked or criticised in the media, not unnaturally

they tended to be cynical and bitter about the experience. Such media criticism tended

to produce perhaps understandable defensiveness on the part of some judges. There was

a sense from some that it was time to fight back, and that where inaccuracies were

reported, these should be corrected and the critics answered. Judges spoke about

writing letters to the editor, calling the media into the back of the court, and generally

responding to criticism. Many judges spoke of the need for a media liaison officer

attached to the courts who could act as a valuable go-between, providing information

and increasing understanding of what was occurring in the courts.273

273 As noted earlier, such an appointment was made in mid 2000.

451

The picture that emerges is one of a delicate and difficult relationship between the

courts and the public. The media were perceived by the judges as becoming

increasingly intrusive and, in common with a modem trend towards accountability,

were seen to be questioning how and why things are done. However, with the advent of

the information age, the courts cannot expect to keep doing things the same way and

expect that public confidence in the system will automatically remain. The expanded

provision of services, such as court homepages on the Internet, is clearly a move in the

direction of increased and improved communication and public access. The Queensland

Court of Appeal now ensures that case reports are freely available within hours of the

decision being handed down.275 *

In conclusion, for public confidence in the sentencing system to be maintained, changes

in the way that the courts operate and provide information about their operation will

have to occur. The courts will have to accept that the public scrutiny is not going to

wane, but increase. Without increased public education and information about

sentencing processes and outcomes, public confidence will continue to erode, and

attacks on the courts and sentencing system will continue.277 The response might be yet

harsher sentencing regimes than those already seen. Maintaining public confidence is

the key to understanding, acceptance and responsible decision-making by all concerned

in the sentencing process.

See also findings and recommendations of the report commissioned by the Australian Institute of Judicial Administration which are to the same effect: Parker, above n 2, 156-168.See http://www.courts.qld.gov.au.

See also Kirby, “The Future of Criminal Law” , above n 4, 274.See also Ashworth and Hough, “Sentencing and the Climate of Opinion”, above n 53, 785.277

Chapter 8

Conclusion

452

1 Back to the future“If we diminish the terror of house-breakers” ... “the terror of the innocent

inhabitants must be increased, and the comforts of domestic life must be greatly

destroyed” . He himself had dogs, firearms, lights and bells at his own country

home, and took a brace of double-barrelled pistols to bed with him every night.1

This description of nineteenth century defensive measures against burglary would be

familiar to any contemporary reader. Nearly 200 years later, fear, deterrence and

retribution are still active components of the wider debate on crime and punishment.

Australia was colonised by Britain in 1788 with romantic hopes of a brave new world

and new world order. The indigenous inhabitants were of anthropological curiosity, the

animals and plants strange and unfamiliar. The original colonists were convicts, their

gaolers and a small number of free individuals hoping for a new life. The legal system

and laws they brought with them were those of Great Britain, a long and dangerous sea

journey from the other side of the world. The original inhabitants of the country were

subjected to often violent expulsion from their lands and were forced into compliance

with the laws of the white invaders, of which they had little comprehension. Their law,

language and culture were systematically destroyed.2

Douglas Hay, “Property, Authority and the Criminal Law” in Douglas Hay, Peter Linebaugh, John Rule, E P Thompson and Cal Winslow (eds), A lbion’s Fatal Tree: Crime and Society in Eighteenth-Century England, Pantheon Books, New York, 1975, 17, citing Edward Christian, Charges Delivered to Grand Juries in the Isle o f Ely 1819, 259-260.John Braithwaite, “Crime in a Convict Republic” (2001) 64 M odern Law Review 11, 19; Henry Reynolds, Dispossession: Black Australians and White Invaders, 2nd ed, Allen & Unwin, St Leonards, 1989.

453

Two hundred and twelve years later, at the beginning of a new millennium, there is a

significant and sustained attack on the justice system, the courts and the judiciary, with

an international revival of retributivist tendencies, and “law and order common sense” .3

There is also an international revival of the conditions of prison overcrowding4 which

initiated the convict settlement at New South Wales over 200 years ago, caused by

increased incarceration rates and punitive sentencing policies.5

One of the initial arguments in this thesis is that in order to understand the decision­

making process which judges undertake in sentencing offenders, the laws under which

they sentence must be understood. Relevant to this is the nature of the community in

which the sentencing is taking place, and the socio-political culture and evolution of

that society.6 The beginning of a new millennium has, not surprisingly, produced

theoretical discussions on a so-called “crisis of criminology” , prompting a re­

assessment in the penological literature of trends and practices.7 The emergence of

restorative justice, particularly the seminal work by Australian John Braithwaite,8 has

been a leading example of a new paradigm; and the prospect of the involvement of the

Russell Hogg and David Brown, Rethinking Law and Order, Pluto Press, Annandale, 1998, 4.There was even a return to prison hulks in Britain in 1996: noted in Arie Freiberg and Stuart Ross, Sentencing Reform and Penal Change: The Victorian Experience, The Federation Press, Sydney, 1999, 2.As to the increase in prisoner numbers in the US, see Michael Tonry and Joan Petersilia, “American Prisons at the Beginning of the Twenty-First Century” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 26, The University of Chicago Press, Chicago, 1999; and Michael Tonry, “Why are US Incarceration Rates So High?” (1999) 45 Crime and Delinquency 419.

See discussion in chapter 2, and in particular John Pratt, “Civilization and Punishment” (2000) 33 The Australian and New Zealand Journal o f Criminology 183; and Norbert Elias, The Civilizing Process, Blackwell, London, 1939, 1994.

See eg, Janet Chan, “Globalisation, Reflexivity and the Practice of Criminology” (2000) 33 The Australian and New Zealand Journal o f Criminology 118; Pat O’Malley, “Criminologies of Catastrophe? Understanding Criminal Justice on the Edge of the New Millennium” (2000) 33 The Australian and New Zealand Journal o f Criminology 153.See John Braithwaite, Crime, Shame and Reintegration, Cambridge University Press, Cambridge, 1989; John Braithwaite, “Shame and Criminal Justice” (2000) 42 Canadian Journal o f Criminology 281; John Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 25, The University of Chicago Press, Chicago, 1999. Braithwaite’s work has been particularly taken up in Canada, see eg, Kent Roach, “Changing Punishment at the Turn of the Century: Restorative Justice on the Rise” (2000) 42 Canadian Journal o f Criminology 249; and Carol La Prairie, “Some Reflections on New Criminal Justice Policies in Canada: Restorative Justice, Alternative Measures and Conditional Sentences” (1999) 32 The Australian and New Zealand Journal o f Criminology 139. Work by other authors on restorative justice has also been discussed in chapter 6.

454

community in the sentencing process appears likely to be a central theme for the

development of punishment and sentencing over the next decade.9

Judicial discretion, in recent history the mainstay of Australia’s justice and sentencing

system, faces tighter regulation in Australia from legislative regulation, mandatory

sentencing10 and even sentencing grids.11 Perhaps the greatest threat however comes

from the perception, seemingly widely held in the community, that the courts and the

judiciary are out of touch, even an obstacle to change,12 with the only solution tighter

control of the sentencing process. It is easy for the media and the community to blame

the courts for society’ s perceived ills, and if this perception is allowed to continue,

confidence in the court system will be quickly eroded.13

2 Aims and purposes

Sentencing has undergone profound change in the past 30 years in both theory and

practice, however there appears to be an increasingly wide gap. The 1970s saw the

decline of rehabilitation as a primary sentencing goal, and the beginning of the

movement toward just deserts.14 It was surely no co-incidence that the rise of desert

based rationales was contemporaneous with the decline of rehabilitation as a popular

See discussion in chapter 7; also Heather Strang, “The Future of Restorative Justice” in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000 and Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” , above n 8.

See Neil Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?” (2000) 24 Criminal Law Journal 164, and other literature cited in chapter 5 for discussion of mandatory minimum sentencing policies in Australia.Neil Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?” (1999) 28 Western Australia Law Review 259.

Stephen Parker, Courts and the Public, Australian Institute of Judicial Administration Incorporated, Carlton South, Vic, 1998, 162.Sir Gerard Brennan, “Why be a Judge?” (1996) 14 Australian Bar Review 89, 94-96; R v Jurisic (1998) 45 NSWLR 209, 256 (Adams J).Francis Allen, “The Decline of the Rehabilitative Ideal” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Punishment, 2nd ed, Hart Publishing, Oxford, 1998; Andrew von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing o f Criminals, Rutgers University Press, New Brunswick, 1987 ; Andrew von Hirsch, Censure and Sanctions, Clarendon Press, Oxford, 1993.

455

sentencing aim.15 It is also interesting to note that this occurred at a time in the mid

1970s and early 1980s marked by the rise of neo-conservative governments in

comparative jurisdictions internationally. These included the Reagan and Bush

govemnents in the United States; the Thatcher government in the United Kingdom;16

and in Australia, the Fraser government in 1975, and the ultra-conservative Bjelke-

Petersen Government in Queensland throughout the 1970s and 1980s.17 These

govemnents lasted until the late 1980s and early 1990s, to be replaced in many cases

by ther more liberal counterparts. Although just deserts arose in this historical context,

it has lot necessarily done so as a response to retributive policy or “ law and order”

strategies, but rather as a desert and censure based rationale, asserting that punishment

should be in proportion to the criminal conduct.18

The ains and purposes of sentencing are represented in Queensland by s 9(1) Penalties

and Seitences Act 1992 (Qld). Just deserts, rehabilitation, deterrence, denunciation and

protect on are all listed in some form as sentencing purposes,19 however no priorities or

legislatve guidance are given for their use, thus leaving their application in a particular

case as a discretionary decision for the sentencer. As has been detailed in chapter 6,

there his been strong criticism from leading commentators about the use of such a mix20of sentencing aims from which to choose, and calls for a leading aim to be specified.

Some <f the judges who participated in the study expressed the view that the statutory

articulttion of the purposes for sentencing in s 9(1) told them what they already knew,

This observation is not intended as a criticism of just deserts, but to point out the context under which it arose, at a time of general disillusionment with essentially utilitarian sentencing rationales.See discussion in Hogg and Brown, above n 3, chapter 5, in particular 121-129.See generally, Peter Coaldrake, Working the System: Government in Queensland 1983-1989, University of Queensland Press, St Lucia, 1989.Von Hirsch, Censure and Sanctions, above n 14; Andrew Ashworth and Elaine Player, ‘Sentencing, Equal Treatment, and the Impact of Sanctions” in Andrew Ashworth and Martin Wasik (eds), Fundamentals o f Sentencing Theory, Clarendon Press, Oxford, 1998, 251-252. It is noted however that just deserts has been employed as a rationale for harsh sentencing regimes and increase in severity: see Michael Tonry, Sentencing Matters, Oxford University Press, New York, 1996, 13-20.Although the inclusion of just deserts or at least retribution was disputed by the Attorney- General who introduced the Bill: see discussion in chapter 2 at 3.2.See eg, Andrew Ashworth, “Structuring Sentencing Discretion” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing, Oxford, 1998, 214.

456

and were therefore unnecessary. There were even views expressed by some judges that

these sentencing purposes were “motherhood statements” .21 Even though the existence

of such a broad list of sentencing purposes has the potential for inconsistency,

(especially as it is expressly provided that two or more of these purposes can be

applied), this did not appear to be a concern for the judges, although several had general

disquiet (unfounded, it would seem), at the time that the Act was introduced, on the

basis of it restricting judicial discretion.22 It was evident that some of these concerns

remained. Balancing the sentencing aims in a particular case was seen to be appropriate

by a number of judges, in contrast with the views of at least one commentator, who

described it as coming close to the “inscrutable” idea of instinctive synthesis.23

One of the most surprising outcomes of the study in relation to the aims and purposes of

sentencing was the judges’ apparent aversion to both retributivism and deterrence. A

number of the judges stated (probably incorrectly) that there was no notion of

retribution in the Penalties and Sentences Act 1992 (Qld). Retribution was not a

concept which found favour with the judges in the study (whether or not it was in the

Act). It also appeared to be the case that at least on some occasions, deterrence was

used as a sentencing purpose only because the judges felt that they were obliged to do

so, not because they believed that deterrence was necessarily effective. Nevertheless,

paradoxically, a number of the judges suggested types of cases in which they felt the

use of deterrence to be appropriate.

The exact reasons for the continued common use of deterrence (both general and

specific) as a sentencing purpose cannot be determined from the data collected for this

study; however community expectations, common practice and statements in appellate

decisions appeared to be relevant factors. There were also indications that the use of

deterrence by the judges may have reflected the utilisation of retributive goals (or just

deserts) in the guise of deterrence.24 Few conclusions beyond such speculation can be

drawn, however the judges’ personal distaste for deterrence (and to a lesser extent

See chapter 6 at 2.2.See discussion in chapter 5 at 5.1.Andrew Ashworth, Sentencing and Criminal Justice, 2nd ed, Butterworths, London, 1995, 61; and see discussion in chapter 4 at part 3.

457

retribution), as expressed by their comments in the interviews, was one of the most

unexpected findings of this study, as it appears to contradict statements made in the

courtroom by the same cohort of judges or their colleagues on the same Bench.

Rehabilitation was a popular purpose given by the judges for sentencing young people

or first offenders to non-custodial or community-based orders. Restoration, if it can be

viewed as a sentencing purpose, was looked upon in its various manifestations with

favour by many of the judges, but was not prominent in their discussions. This is

reflected by the fact that restoration is not listed as a sentencing purpose in the

Queensland Penalties and Sentences Act, but is more generally incorporated in the

sentencing process. Restorative justice is beginning to have a significant impact on

sentencing in a number of jurisdictions, and the judge’s references to the role of victims

in particular (despite the fact this topic was not formally included in the study),

demonstrates their interest and concern for this aspect of sentencing. Restorative

justice, victims and alternative sentencing options (largely beyond the scope of this

thesis) are deserving of further debate and legislative attention in Queensland.

The continued reliance by the judges in their sentencing decisions on the utilitarian

theories of deterrence and rehabilitation25 appeared, at least partially, to endorse the

view that sentencing has a role to play in crime prevention. Where judges continue to

emphasise purposes such as deterrence or rehabilitation in their sentences, it encourages

the belief on the part of the community in general that sentencing has a major role to

play in crime prevention, and therefore harsher sentences are called for in order to

prevent crime. If the sentence fails to deter or rehabilitate, as will often be the case, it

is easy for the public and politicians to lose faith in the system, and be critical of the

courts. This result may be an inevitable outcome of a system where there is little

understanding of what actually occurs in the courtroom. If however there were less

emphasis placed by the sentencing courts on deterrence and rehabilitation, and more

placed on communication by the courts of the limits and purpose of sentencing; this

See chapter 6, and in particular comments in the conclusion.Protection or incapacitation were ironically not discussed in depth by the judges. See discussion in chapter 1 at 1.1.See eg discussion in Hogg and Brown, above n 3, 9.

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would at least have the potential for assisting the community at large to understand what

the sentencing system is hoping to achieve.28

An extensive and ever-increasing theoretical debate continues in the literature over the

theories of punishment. If the criminological literature on theories of punishment is to

have an influence on the practice of sentencing, it is important that it be informed by the

way in which the theory is being utilised by sentencers, and vice versa. If, for example,

studies show that deterrence is only effective in certain limited circumstances, then

continued enthusiastic use of deterrence by sentencers is almost pointless. It is likewise

important that sentencers be more aware of developments and trends in sentencing

theory. The judges in this study appeared to almost universally disapprove of

retribution, and yet one of its manifestations, just deserts, is one of the most enduring

recent themes in the sentencing literature. Likewise, it has been observed by

commentators that the decline in popularity of rehabilitation, so marked in the literature

since the 1970s, has gone largely unnoticed by the courts,29 and this is certainly

confirmed by the finding of this study.

With the current political emphasis on law and order, such “reforms” as have occurred

in Australia (such as mandatory minimum sentences in Western Australia and the

Nornem Territory, and even the serious violent offences amendments in Queensland),

appear to have been implemented for reasons of controlling perceived problems of lawon

and Drder, rather than having a sound theoretical and policy base. Judging by the

stancard of political debate on recent sentencing “reforms” , there is little evidence that

criminological theory is informing the political process in Australia at least to any

This is of course premised on the assumption that there are clear goals of sentencing which can be easily determined; which may not be the case under the “cafeteria system” of a multiplicity of goals presently in operation (see discussion in chapter 6 at 1.1).See Freiberg and Ross, above n 4, 202, and chapter 1 at n 145.See eg, discussion in Hogg and Brown, above n 3; David Brown, “Mandatory Sentencing: A Criminological Perspective” , UNSW Symposium 20 0 0 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000; George Zdenkowski, “Sentencing Trends: Past, Present and Prospective” in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000; Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?” , above n 10. See also detailed discussion of this in chapter 5 at 4.3.

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significant degree,31 and similarly little evidence of theoretical involvement in the

practice of sentencing.

The question was posed at the beginning of this thesis of how judges use the aims and

purposes in coming to their decision in sentencing. In relation to the practical use of the

sentencing purposes, only one judge said that they specifically used a pro-forma and

methodically looked at the applicability of each purpose in a sentencing hearing. Very

few judges said that they regularly considered the sentencing purposes as laid out in s

9(1) of the Act, however many said that they kept the purposes at the back of their

mind. What appeared evident from the study was that the judges were much more

familiar with deterrence and rehabilitation as sentencing aims, and one conclusion

which could be drawn was that these purposes were used primarily because of

familiarity, although there was considerable support for the concept of rehabilitation,

and faith expressed that it would work with young offenders. Although as H L A Hart

stated,32 judges are not necessarily philosophers or professors, it is important that there

be some relationship between criminological theory, policy and practice. If each

operates in a vacuum and there is little intersection between the two, both the practice of

sentencing, and sentencing reform will be the poorer.

3 Discretion and ownership

In the context of indeterminate sentencing systems, judges and commentators have

variously described sentencing as an art, or a process of intuitive or instinctive

synthesis.33 While a number of judges in this study spoke of sentencing as an art, or an

intuitive process, none used the term “instinctive synthesis” , which is widely used in the

With noted exceptions such as the Victorian Sentencing Committee Report and the Australian Law Reform Commission’s reference into sentencing, and subsequent reports and discussion papers; although the latter could be said to have had comparatively little effect in terms of law reform at the federal level. See Victorian Sentencing Committee, Sentencing: Report o f theVictorian Sentencing Committee, Attorney-General’s Department, Victoria, Melbourne, 1988; and Australian Law Reform Commission, Sentencing: Report No 44, Australian Government Publishing Service (ALRC 44), Canberra, 1988.H L A Hart, Punishment and Responsibility: Essays in the Philosophy o f Law, Clarendon Press, Oxford, 1968, 3; see discussion chapter 1 at part 1.

4 6 0

State of Victoria.34 * It was clear however that the judges saw sentencing as a process

where discretion in the hands of the judge should be maintained, generally for reasons

of fairness. While leaving discretion largely in the hands of the judges allows them to

take account of individual circumstances, both of the offence and the offender, it also

raises issues of potential disparity.

The judges in the study were generally defensive of their central role in sentencing

which was seen as vitally important, and were dismissive of moves in other jurisdictions

to further structure discretion. It was clear that there was solid opposition by the judges

to sentencing grids and mandatory' minimum sentencing schemes. What was less clear

(because of the timing of the interviews for this study in late 1998), was whether the

judges would embrace the New South Wales system of guideline judgments, begun in R

v Jurisic . There was general support among the judges for the informal system of

precedent judgments which had operated from time to time in Queensland,36 and it is

possible that if Jurisic and the guidelines scheme had been better known at the time of

this study, the Queensland judges would have been supportive of that approach.

There are strong and compelling arguments in the literature for the further structuring of

judicial discretion. Most Australian commentators however firmly disagree with the

restrictions on sentencing discretion brought about by mandatory minimum sentencing

schemes, and sentencing guidelines or grid systems (such as in the United States).37

The New South Wales system of guideline judgments has however proved popular in

New South Wales, and has been a method by which the Court of Criminal Appeal has

provided leadership and guidance to the lower courts on a number of important issues,

See Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed, Oxford University Press, Melbourne, 1999, 3.3; and discussion in chapter 4, part 3.See R v Williscroft [1975] VR 292, and Fox and Freiberg (ibid).(1998) 45 NSWLR209.See chapter 5 at 4.2.See eg, Neil Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories” (1999) 22 University of New South Wales Law Journal 267; Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?”, above n 10; Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?, above ni l ; Dianne Johnson and George Zdenkowski, Mandatory Injustice: Compulsory Imprisonment in the Northern Territory, Centre for Independent Journalism, Sydney, 2000; and the literature on these topics in chapter 5.

461

the most recent of which was sentencing discounts for guilty pleas.

While the current law and order discourse may be popular with politicians and

embraced by the electorate, it is not difficult to foresee increased pressure for greater

structuring of judicial discretion as a result. Independent of such populist debate, there

are other compelling reasons for structuring discretion, for example, fairness and in

order to maintain consistency. Some proponents of further restrictions on judicial

discretion may however have been supporting the concept because of perceptions that it

may result in an escalation of severity (for example supporters of mandatory minimum

sentencing).39

Conclusions from the current study suggest however that there would be considerable

resistance on the part of the judges if there were to be any further restrictions placed on

discretion in sentencing. The judges appeared to be strongly in favour of leaving the

system as it currently is. Arie Freiberg and Stuart Ross note the difficulty of changing

the behaviour of the judiciary, particularly when the change has altered long established

patterns of behaviour, and where the change has not been welcomed.40

Michael Tonry refers to the defensiveness on the part of judges generally on this issue

as “judicial ownership” . He states:

As a policy matter, it is hard to imagine a persuasive argument why celebration

of judicial ownership of sentencing is a more important policy goal than

reduction of unwarranted sentencing disparities. The best I can devise would be

a slippery slope argument that an independent judiciary is essential to

preservation of an ordered democracy and that any intrusion on the existing

scope of judicial authority threatens the concept of judicial independence. This

R v Thomson (2000) 49 NSWLR 383. See discussion of guidelines judgments in Neil Morgan and Belinda Murray, “What’s in a Name? Guideline Judgments in Australia” (1999) 23 Criminal Law Journal 90; George Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?” (2000) 12 Current Issues in Criminal Justice 58; The Hon JJ Spigelman, “Sentencing Guideline Judgments” (1999) 73 Australian Law Journal 876 (address to National Conference of District and County Court judges on 24 June 1999); and Kate Warner, “Sentencing Review 1998” (1999) 23 Criminal Law Journal 364.Cf the conflict inherent in the just deserts debate where similar problems arose.

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would be a silly argument, although some judges may believe it. Were it valid,

it would apply as readily to codification of bodies of law like contracts, property,

and torts that evolved under the common law as to establishment of rules for

sentencing where formerly there were none.41

Tonry also makes the observation that “Australian judges appear to be committed at

least as strongly as their English brethren to the notion that judges in some sense own

sentencing and that legislative encumbrances on that ownership are inherently

inappropriate” . This view was confirmed by the findings of the present study, which

found a solid attachment on the part of the judges to the view that discretion in

sentencing ought to remain with the sentences42

The conclusions of this study suggest therefore that there remains a divide between the

judges who are defensive of the maintenance of a wide sentencing discretion, and on the

other hand commentators who see a need for a reduction in disparity, which they argue

structuring discretion would bring.43 It is not argued here that such structures should

include mechanisms such as mandatory minimum sentencing, or sentencing grids. The

analysis of these systems reveals such severe restrictions on discretion, and the inability

to discriminate effectively between different offence facts and different circumstances

of the offender; that in many cases manifest unfairness results. Mandatory minimum

sentencing systems have been almost universally condemned by commentators, and

largely only defended by the architects of such systems.44 Sentencing grids in the

United States have had a mixed reception, but proposals for the introduction of such a

Freiberg and Ross, above n 4, 3.Tonry, Sentencing Matters, above n 18, 181.This view has also been consistently found in other studies and sentencing reviews, see eg, Andrew Ashworth et al, Sentencing in the Crown Court: Report of an Exploratory Study, Occasional Paper no 10, Centre for Criminological Research, University of Oxford, Oxford, 1984; Victorian Sentencing Committee Report, above n 31; New South Wales Law Reform Commission, Sentencing (Report No 79), Sydney, 1996.See eg, the work by Lovegrove; see Austin Lovegrove, Judicial Decision Making, Sentencing Policy, and Numerical Guidance, Springer-Verlag, New York, 1989; Austin Lovegrove, The Framework of Judicial Sentencing: A Study in Legal Decision Making, Cambridge University Press, Melbourne, 1997.See detailed discussion in chapter 5 at 4.3.

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system in Australia have met with firm 6pposition.45

As discussed in chapter 5, judicial discretion has already been under threat in

Queensland with the restrictions placed on sentencing offenders convicted of “serious

violent offences” .46 Further restrictions are not difficult to envisage should the law and

order auction escalate, however judicial discretion in sentencing has proved its

resilience in Australia despite the recent threats from mandatory minimum sentencing

and sentencing grids 47

More moderate forms of regulation such as statutory sentencing guidelines (as is the

case in Queensland and Victoria) were not accepted by all of the judges, with some

stating that such legislation was itself a restraint on judicial discretion. This may indeed

be the case, but differentiation must be made between inappropriate restriction, and

appropriate regulation. As has been seen in the discussion in the preceding chapters,

such legislation setting out sentencing purposes and principles can act as a valuable

regulation of the sentencing process, clearly setting out the rules within which

sentencing is to take place. If anything, there is a case for further clarification of both

sentencing aims and guidelines, so that the current system of “balancing” both

sentencing aims and the interests of the parties, is further controlled. This would have

obvious benefits for fairness and consistency between offenders before the courts.

What this study suggests however, is that any such change would have greater chance of

succeeding in practice if it had the support of the judiciary 48

See eg, Victorian Sentencing Committee Report, above n 31. See also the legislation in Western Australia (as yet unproclaimed), which seeks to introduce Australia’s first grid system: see discussion in chapter 5 at 4.4 and 4.4.1. See also discussion in Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing Matrix?, above ni l .See Part 9A Penalties and Sentences Act 1992 (Qld), and discussion in chapter 5 at 4.5.Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm Shift?”, above n 38, 72.Note also the judicial opposition to some of the changes mooted by the Victorian Sentencing Committee, see Victorian Sentencing Committee Report, above n 31; and discussion in preceding chapters.

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4 The co u rts and the co m m u n ity

The connection between punishment and the community49 has become central to

sentencing in the past three decades. This link was explored in chapter 5 (community

based punishments); chapter 6 (restorative justice); and chapter 7 (public opinion,

community values and expectations).

The relationship with the community has shaped the thinking in relation to sentencing,

as well as influencing the type of punishments which are now available. In many ways

it is now the central influence on the development of sentencing theory. Anthony

Bottoms raises the concept of “the community” to one of three main conceptual

developments which underpin the development of model sentencing change in different

jurisdictions.50 He identifies the three main aspects of the concept of community as

community penalties and diversion,51 justice in and for local communities and groups,52

and devolving decision-making to the community.53 The increased development of the

relationship has paralleled the rise of law and order political movements, and the

escalating pressure to take into account the needs of victims in the sentencing process,

advocated by victim support groups and victims themselves.

The community and the sentencing process are becoming increasingly linked through

the growing influence of public opinion, the media and law and order politics.54 In

On the meaning and idea of “community”, see Nicola Lacey, State Punishment: Political Principles and Community Values, Routledge, London, 1988 generally, but in particular chapter 8, Punishment and Community (also extracted in Andrew von Hirsch and Andrew Ashworth, Principled Sentencing: Readings on Theory and Punishment, 2nd ed, Hart Publishing, Oxford, 1998). See also Nicola Lacey, “Community in Legal Theory: Idea, Ideal or Ideology” (1996) 15 Studies in Law, Politics and Society 105; Anthony Bottoms, “The Philosophy and Politics of Punishment and Sentencing” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995, 34 ff; and Hogg and Brown, above n 3, 185- 187.Bottoms, above n 49, 34 ff. The other two aspects mentioned are just deserts/human rights, and managerialism: ibid, 18.Incorporating intermediate community based sentencing options such as community service and probation (these are incorporated into the Penalties and Sentences Act 1992 (Qld) in Part 5).Meaning punishment as inclusive to the needs of particular groups in the community such as female victims of sexual offences: Bottoms, above n 49, 36-37.Eg, community conferencing, offender/victim mediation: Bottoms, above n 49, 37-38.See generally chapter 7, and Andrew von Hirsch and Andrew Ashworth, “Law and Order” in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory

465

some ways the wheel has turned full circle with a return of what are virtually public

executions in the United States, which practice recalls the use of the stocks and public

hangings which were popular entertainment in the 1600s and 1700s.55 Various

commentators have their own conception of what is occurring, with one referring to the

political dimension as “populist punitiveness” .56

Whatever the label adopted for the phenomenon of law and order, there is no doubt that

it is having an impact on sentencing in many jurisdictions.57 Exactly what impact it has

had, the effect of that impact, and whether it is desirable or otherwise, is yet to be

assessed. More research is called for into why it has flourished of late and what factors

will foster or impede it. The judicial responses analysed in this study suggest that law

and order is beginning to have a significant effect on the sentencing process.

4.1 The courts and the media

The way that the media deals with matters in court is part of a “feel

good” society and the need to have a win win situation. Law isn’t like

this and sentencing isn’t like this either. Everyone feels they have torg

come out of court from a sentence feeling good, but life is not like that.

The past twenty-five years has seen a significant increase in the public scrutiny of

sentencing. While the reasons for this are speculative, a major cause would have to be

the proliferation of electronic media and the opportunity to broadcast information

widely about sensational criminal cases; crime sells. The television court reporter

becomes the commentator, giving information on complex cases in a fifteen second

news grab. The victim’s family is led sobbing from the court. The defence team is

shown striding away. It is clear who is being cast as the archetypes of good and evil.

and Policy, 2nd ed, Hart Publishing, Oxford, 1998; and Justice Michael Kirby, “The Future of Criminal Law” (1999) 23 Criminal Law Journal 263, 273-274.See discussion in chapter 2.Bottoms, above n 49, 39. See also Hogg and Brown, above n 3.Von Hirsch and Ashworth, “Law and Order”, above n 54.Ibid 419. See also Hogg and Brown, above n 3.Judge T.59

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Newspapers and the print media can and do give in-depth coverage to sentencing cases,

devoting extra column space to the more sensational cases. Pictures of grieving

relatives accompany the commentary. The message is clear. The victim and/or their

family have suffered terribly and will always suffer, the criminal will get off lightly to

be housed at taxpayer’ s expense for an all too brief period of time, and then will be let

out to do it all again. The cliches are numerous and regularly found in the popular

press.

Out of fairness to the media however, it should be added that public education is not the

sole or main aim of crime reporting, and it is too simplistic to lay at their feet the only

blame for public perceptions of crime; however if the reporting of sentencing matters

was more balanced and thorough, the public might have a better and more accurate

understanding of the sentencing process.60

There are no winners and losers in the criminal justice system. Having the perpetrator

of a crime put behind bars does not bring back a deceased victim. It does not restore the

injuries, take away the nightmares or remove the psychological damage. It might make

the victims and their families temporarily feel better if they perceive that “justice has

been done” but if their expectations for a lengthy sentence are not fulfilled, it may only

bring frustration, anger and resentment. As one of the judges said:

We as judges see the pain inflicted on the person before the court. The public

tends to be unsympathetic toward people before the court. There is a concept

that people who are sympathetic toward criminals are “bleeding hearts” . The

sentence to be fair involves taking those things into account. But inevitably

there is criticism. It is hard to get media coverage of the circumstances of the

accused. The public does not want to know. The public is hard, and I feel this is

particularly so in Queensland where people seem to be less compassionate. It

seems to be a very patronising and judgmental society. There are so many

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Canadian Government Publishing Centre, Ottawa, 1987, 98.

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criticisms of the process in Queensland, and there is a bad perception of judges.

I don’t understand why the public is so hard toward accused. Perhaps it is

human nature.61 *

Many of the judges in this study perceived a lack of public confidence in the sentencing

system. The pressure being put on the courts by the media and the calls for public

opinion to be taken into account can also be seen as a symptom of this problem. Justice

Kirby however comments that judges can and do adapt to changing times, and are

willing to respond sympathetically to changing perceptions of justice.63 Underlying the

responses by the judges in this study was the view held by many of them that they were

in touch with community values, and thus qualified to express these values in their

sentencing decisions. What was also evident from many of the interviews was a sincere

desire and commitment to assimilate these views in their sentencing decisions

(wherever appropriate). The issues of exactly how public opinion, community values or

community expectations should be taken into account in sentencing, and more

problematically, how these views should be ascertained, remains to be determined.

Sentencing is not, and can never be, the answer to the community’s crime problem, nor

can it have a significant impact on the protection of the public against crime,64 the

reason for this being that the courts deal with only a small proportion of offences. This

is taking into account the low reporting rate, the low clear-up rate, and the actual

conviction rate. Andrew Ashworth estimates that in the UK the courts deal with only

two percent of actual offences in any one year.65 An Australian study by the Australian

Institute of Criminology estimated that for every 1 000 crimes committed, 43 result in

convictions and one person is jailed. Therefore, according to that study, doubling the

rate of imprisonment would affect 0.1 per cent of the total crimes committed.66 Another

Judge E.Cf also R v Jurisic (1998) 45 NSWLR 209, 246, (Adams J); and Parker, above n 12, 162.Justice Michael Kirby, “Judicial Stress” (1995) 13 Australian Bar Review 101, 110. See also R v Jurisic (ibid), 220 (Spigelman CJ).Andrew Ashworth, “Criminal Justice and Deserved Sentences” [1989] Criminal Law Review 340, 341.Ashworth, Sentencing and Criminal Justice, above n 23, 23, 57-58.Mukherjee, S et al, (1987) The Size of the Crime Problem in Australia Australian Institute of Criminology, Canberra, quoted in Hogg and Brown, above n 3, 9-10.

468

reason why the courts cannot solve the community’s crime problem is that the major

causes of crime lie outside the ability of the courts to do much about them.67 A recent

review of research in this area concluded that there was no clear relationship between

imprisonment policies and crimes rates as there were so many different factors

involved.68

The conservatism of the community witnessed over the past 20 years, and the increasing

emphasis on law and order and fear of crime,69 has undoubtedly had a significant

influence on how the community perceives the sentencing system. Research in the

United States has also noted a relationship between conservative religious views and

public perceptions of crime and punitiveness,70 and there has been a connection drawn

between neo-conservative policies and the influence of law and order.71

With constant criticism of the courts in the media, both in terms of public accountability

and the perceived lack of sensitivity of the court to victims, it is important that the

courts do whatever is possible to communicate the reasons for a particular decision. If

the courts do not and cannot communicate what they do effectively to the community at

large, the misunderstanding of what occurs in the courts will only increase, with

corresponding potential for an increase in confusion and resentment. Effective72communication is one of the keys to overcoming this.

This need for better communication has been stated on many occasions, but perhaps

none so eloquently as by Sir John Barry in his lecture “The Courts and Criminal

Hogg and Brown, above n 3, 10-11.Tonry and Petersilia, above n 5. See also Arie Freiberg, “Sentencing Reform in Victoria: A Case-Study” in Chris Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press, Oxford, 1995, chapter 4; William Spelman, “What Recent Studies Do (and Don’t) Tell Us About Imprisonment and Crime” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 27, The University of Chicago Press, Chicago, 2000.John Irwin, James Austin and Chris Baird, “Fanning the Flames of Fear” (1998) 44 Crime and Delinquency 32; Hogg and Brown, above n 3, chapter 2.See Theodore Curry, “Conservative Protestantism and the Perceived Wrongfulness of Crimes: A Research Note” (1996) 34 Criminology 453.Hogg and Brown, above n 3, 121.See generally Parker, above n 12.

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Punishments” in 1969,73 * recently quoted by the High Court in Pearce v The Queen.14

[The criminal law] must be administered publicly in such a fashion that its

activities can be understood by ordinary citizens and regarded by them as

conforming with the community’s generally accepted standards of what is fair

and just. Thus it is a fundamental requirement of a sound legal system that it

should reflect and correspond with the sensible ideas about right and wrong of

the society it controls, and this requirement has an important influence on the

way in which the judges discharge the function of imposing punishments upon

persons convicted of crime.75

5 A q u e s tio n o f ba lance

At the turn of a new century and new millennium, despite the optimism for new

sentencing theories such as restorative justice, society has in many ways returned to the

values and attitudes of the past; to a time of simple and more fundamental justice,76 with

public punishment and substantial community involvement. This return to simplistic

punishment values may not be inappropriate if it means that the community is getting

involved in meaningful efforts at crime prevention, and supporting offenders to

rehabilitate and assimilate into society. If, however, it is a politically motivated call to

retributivism, then it is difficult to be positive about the immediate future trends in

sentencing law.

Sir John Barry, The Courts and Criminal Punishments, 1969. Sir John Barry was a distinguished judge and legal scholar, and was the founder of the Department of Criminology at the University of Melbourne in 1951. See discussion of his work in Justice Michael Kirby, “John Barry on Sentencing: A Contemporary Appraisal” (1979) 12 The Australian and New Zealand Journal of Criminology 195.(1998) 194CLR610.Ibid, 622-623 (McHugh, Hayne and Callinan JJ).See also Michael Tonry, “Mandatory Penalties” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 16, The University of Chicago Press, Chicago, 1992, where a comparison is made between the use of the death penalty in eighteenth century England, and mandatory penalties in the US in the late twentieth century.

470

Much has been said by the judges in this study about balance. The balancing metaphor,

while accurately describing the tightrope-like equilibrium which must be maintained in

the courts between what can only be described as completely opposing interests, is also

vague and meaningless at times.77 Commentators have noted the shift in balance

between these interests in the courtroom, with Freiberg and Ross noting that:

The delicate sentencing balance between the interests of the offender, the state

and the victim has shifted away from the former to the latter.78

One of the underlying premises of utilitarian based sentencing purposes such as

deterrence or rehabilitation is that the sentence itself has an influence on the future

behaviour of the offender. Further, by promoting such sentencing purposes, the courts

are placing responsibility for the prevention of crime on the sentencing system itself,

and raising corresponding community expectations; when it is the criminal justice

system as a whole, in partnership with coordinated strategies from other public

institutions, which must take this responsibility.79 This proposition also forms part of

restorative justice debates, as responsibility is extended to the community and other

institutions. This is also a question of balance, as the following comment from

Canadian commentators Shereen Miller and Mark Schacter notes:

The issue is not how criminal justice can restore balance in society. This is a

burden that the criminal justice system was neither designed nor intended to

bear. It might be more productive to ask simply, what is the role of criminal

justice, together with other public and civic institutions, in this struggle? What

we need is not merely a model of “restorative justice” , but a model of80“restorative governance” - in which criminal justice plays only a small role.

What was seen by the judges in the present study to be in need of balancing were the

sentencing aims, the factors in a particular case, the interests of the parties, and the

77

78

79

See discussion in Ashworth, Sentencing and Criminal Justice, above n 23, 61.Freiberg and Ross, above n 4, 1.See discussion in chapter 1 at 1.1, and ALRC 44, above n 31, 13.

471

interests of the community. What however must also be considered (or reconsidered), is

the belief by the judiciary in a “quasi-constitutional right to discretion in matters of

sentencing” 81 with the possibility or probability (largely denied by the judges), of

significant undue disparity between like cases, and idiosyncratic sentencing decisions.

What must ultimately be balanced therefore is the ability of the sentencer to take into

account individual factors in a sentence by means of judicial discretion, with the need to

further regulate this discretion, where appropriate, to ensure consistency and fairness.

“Instinctive synthesis” and like concepts do not ensure such uniformity, however

legislative responses such as mandatory penalties and sentencing grids do not ensure

fairness either, as they are unable to discriminate where necessary to take into account

mitigating factors in relation to both the offence and the offender.

Guideline judgments, as used in New South Wales since 1998, and previously in other

jurisdictions, provide the most compelling solution yet put forward to the dilemma of

how to fairly regulate and guide sentencing discretion in the courts. Coupled with a

clear legislative statement of sentencing purposes, guidelines and principles,83 guideline

judgments provide appropriate regulation, initiated by the courts, which can evolve as

need be to fit changing circumstances. What should also be seriously considered by the

legislature is a Sentencing Commission or Council, as suggested by the ALRC in

1988;84 which would have as its role data collection and research, judicial education, and

training,85 advice and oversight on law reform, and public information and

dissemination of information.

Further to the balancing metaphor, what must also be kept in balance is the process of

reform. As this study and others have demonstrated,86 the judiciary has strong opinions

Shereen Miller and Mark Shacter, “From Restorative Justice to Restorative Governance” (2000) 42 Canadian Journal of Criminology 405, 406.Ashworth, “Structuring Sentencing Discretion”, above n 20, 213.See discussion in chapter 5 at 4.2.Such as is the case in Queensland (and not in New South Wales), however the Queensland legislation could be further tightened and clarified, not the least in relation to the “smorgasbord” of sentencing purposes available: see discussion in chapter 6.See ALRC 44, above n 31, Summary of Recommendations, liv-lv.See also Andrew Ashworth, “Sentencing Reform Structures” in Michael Tonry (ed), Crime and Justice: A Review of Research, 16, University of Chicago Press, Chicago, 1992, 230-232.See eg, Crown Court Study, above n 42.86

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about the importance of their place in the sentencing process and how that process

should operate. If judicial views are allowed to dominate any reform process (for

example the New South Wales Law Reform Commission’s reference on sentencing),87

then the likely outcome will be the reproduction of these judicial views and values. On

the other hand, if judicial views are ignored, which could easily be the case, important

factors may not be taken into account, and there may not be judicial ownership of the

changes, leading to difficulties in their implementation.88 The best solution to this

problem may be to involve the judges in the process of reform, thereby increasing theirOA

confidence in the outcomes.

The final important piece of the puzzle is the community. This study has discussed

some of the difficulties raised by the community’ s involvement in sentencing,

particularly by the involvement of the media, and law and order campaigns. The judges

were wary of this involvement, but not totally dismissive. Some judges saw a positive

role for the media in sentencing, as a means by which critical information could be

disseminated to the public, and a way in which the community could be better informed

about the sentencing process. Although most of the judges interviewed did not see a

role for public opinion to directly influence the sentencing process, some did see such

input as appropriate, and even inevitable. Whether public opinion should be taken into

account, and how a judge should be informed of this is far from clear. There is a strong

and compelling argument (put forward by some of the judges), that the place of public

opinion is as part of the political process only, in serving to inform the politicians as

part of the legislative process, and that it has little or no place in the courts, where such

laws must be applied according to established legal principles. There is also a strong

argument for the right of appeal to be in the Director of Public Prosecutions, not the

Attorney-General as is presently the case in Queensland, as the latter can be subject to

inappropriate pressure for escalation of severity, based on public opinion and

perceptions which may not be grounded in fact.

New South Wales Law Reform Commission, Sentencing: Discussion Paper No 33, New South Wales Law Reform Commission, Sydney, 1996; New South Wales Law Reform Commission, Sentencing (Report No 79), Sydney, 1996.See also Tonry, Sentencing Matters, above n 18, 165.Ashworth, “Sentencing Reform Structures”, above n 85, 232-233.

473

Law and order agendas and public criticism have led to increasingly harsh sentencing

structures, particularly in the United States; with the re-introduction of the death penalty

in the 1970s, severe mandatory sentencing schemes,90 and restrictive sentencing

guidelines and sentencing grids.91 Australia has seen similar moves, particularly with

regard to mandatory minimum penalties in the Northern Territory and Western

Australia. With the increasing conservatism of the community and intensifying calls for

punitive sentencing, it is not unreasonable to suggest that some of the more restrictive

schemes seen elsewhere could be adopted in Queensland as a political solution to

perceived problems.

The judges in this study saw the sentencing process as one of difficulty and complexity,

not one to be taken lightly. One of the critical issues explored by this thesis has been

the maintenance of an appropriate relationship between discretion, disparity and the

various sentencing aims; but the solution to this should not be one dimensional, such as

the introduction of mandatory minimum sentencing schemes. There are many different

interests represented in the sentencing process, and this study has presented the

perceptions and attitudes of one, the judges. What has been demonstrated however is

the need for the views of all interested parties to be taken into account, and the necessity

for greater communication in order to increase understanding of what is occurring in the

courts.

6 A p o s tsc rip t: w here to fro m here?

In chapter 1, the usefulness of research such as this into judicial decision-making was

justified in particular by noting calls from prominent commentators for more to be

known about the “moment of judicial decision” .92 Ashworth has noted that in

discretionary sentencing systems, the practice of sentencing is influenced by the

sentencer’s own views about the offence, the aims, effectiveness and severity of

See Tonry, “Mandatory Penalties”, above n 76; Lois Forer, A Rage to Punish: The Unintended Consequences of Mandatory Sentencing, W W Norton and Company, New York, 1994.See chapter 5.Justice Michael Kirby, “Judging: Reflections on the Moment of Decision” (1999) 18 Australian Bar Review 4, 15.

474

sentences, the relative weight of mitigating factors, causes of crime and the court’ s

function in passing sentence. He goes on to conclude, “There can be equally little

doubt that it is likely to be much easier to bring about changes in sentencing practice if

the interplay of these influences is understood than if it is not” .94

This study has enhanced the understanding of these issues and given an important

insight into judicial attitudes and perceptions on a number of aspects of the sentencing

process. Another outcome of this research is the opportunity it has given the judiciary

to have their views heard, and to gain greater understanding of their role in the process.

As one of the central players in the process, their views have for too long been ignored.

In addition to the central question explored in the thesis, which was the issue of how

judges go about sentencing offenders, taking into account judicial methodology,

attitudes and perceptions, a number of themes have emerged from the analysis. First

and foremost was the balancing metaphor which the judges used to describe the

sentencing function, illustrating their strong attachment to wide judicial discretion in

sentencing. Another minor theme which emerged was the cyclical nature of punishment

and sentencing, represented by the current law and order debate, in some aspects

strongly reminiscent of law and order issues centuries earlier.95 In Queensland, the

current sentencing system is still a colonial relic of the British criminal justice system.

While this sentencing system has served the State well, there is ample evidence from

other jurisdictions that there is room for improvement in sentencing practices.

Although it is not the purpose of this thesis to make recommendations for change, a

number of findings have emerged from the analysis, and it is useful to note these so as

to inform further debate on sentencing practices; and in particular highlight the interplay

between theory, law and practice. Some of these matters are issues for legislative

change, and others for consideration by the courts, either formally or informally. These

findings (some tentative), are listed as follows:

Andrew Ashworth, “Influences on the Creation of Criminal Law and Criminal Policy in England” (1984) 13 Anglo-American Law Review 1, 10. See full quote in chapter 1, at n 144.Ibid.Tonry, “Mandatory Penalties”, above n 76.

475

• The Penalties and Sentences Act 1992 (Qld) has been useful and necessary in

clearly stating sentencing aims and purposes, principles and dispositions.

Consideration should be given in particular to clarifying the aims and purposes

of sentencing and giving more guidance in terms of an overriding aim, in line

with the recommendations of the Australian Law Reform Commission that

punishment should be just.96 The meaning of s 9 (l)(a ) “to punish the offender to

an extent or in a way that it just in all the circumstances” , essentially a desert

based rationale, should be further made clear, and judges educated as to its use.

• Initiatives such as “serious violent offences” in Part 9A of the Queensland Act

should not be introduced as a response to “ law and order common sense” . Any

changes to sentencing laws should only be introduced as a response to carefully

considered law reform initiatives, including proper debate and consultation with

all interested parties. The judges were firmly against “reforms” such as

mandatory minimum sentences or sentencing grids, mainly on the basis of

restriction on judicial discretion, which discretion they saw as necessary to

properly take account of the circumstances of every case, both in relation to the

circumstances of the offence and the offender.

• Further consideration should be given to increasing the range of sentencing

options available, particular in order to increase flexibility. Initiatives such as

conferencing, which forms part of sentencing for juveniles in Queensland but

not adults, should be considered.

• Judges should be dissuaded from the routine and persistent use of deterrence in

their sentencing decisions, particularly general deterrence; and if generalQQ

deterrence is to remain in the legislation as a sentencing purpose, its use should

96

97

98

ALRC 44, above n 31, recommendation 7, and para 35. See Juvenile Justice Act 1992 (Qld), Part 1C, Division 2. Cf ALRC 44, above n 31, recommendation 9.

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be restricted to sentences where it is objectively appropriate." Many examples

of the use of deterrence given either by the judges in this study, or generally in

Court of Appeal decisions, would have been better served using just deserts and

denunciation. If deterrence, and to a lesser extent rehabilitation, continues to be

employed as a predominant rationale, the community will continue to see the

purpose of a sentence as crime prevention, which role it does not, and cannot

have.100

• While this thesis argues that judicial discretion should remain in the hands of the

judges, sufficient issues in relation to fairness and consistency arise with such a

system,101 that further structuring of judicial discretion should be considered.

The Queensland Court of Appeal should give serious consideration to the

introduction of sentencing guideline judgments, as in New South Wales,

England and New Zealand.102 This would give important and appropriate

guidance to the sentencing courts at first instance, and allow greater flexibility in

sentencing within the guidelines introduced. These guidelines should be

comprehensive, although not binding in the formal sense, which is in accord

with the situation in New South Wales.103 Consideration should also be given

by the legislature to enacting statutory provisions for guideline judgments.104

• There appears to be a need for an improved relationship between the trial courts

and the Court of Appeal generally, however the introduction of guideline

judgments (based on the New South Wales model) would go a long way to

overcoming current problems and perceptions, by clarifying principles and

sentencing ranges to be applied in certain types of cases. These judgments give

clear guidance for sentencing courts to follow, which in turn promotes

See Andrew von Hirsch et al, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research, Hart Publishing, Oxford, 1999, as to the most recent literature on the use of deterrence.See detailed discussion in chapter 6.Although it was noted that these issues were not actively investigated in this study. See brief discussion of the literature in chapter 5 at part 2.See chapter 5 at 4.2.See R v Jurisic (1998) 45 NSWLR 209, 221.As has been the case in NSW and WA, see chapter 5 at 4.2.104

477

consistency, thereby lessening appeals against excessive or inadequate

sentences, and overcoming perceptions that the appeal courts are interfering

inappropriately with sentencing discretion at first instance.

• There is a need for initial and continuing education of judges on sentencing,

both in relation to aims and purposes generally, but also to keep abreast of recent

developments in sentencing theory, policy and practices in other jurisdictions.

There is also a need for sentencing scholars to be more aware of issues in the

practice of sentencing, so that this in turn can inform sentencing research.

• There should be further public discussion and debate on restorative justice in

sentencing, and the role of victims generally. Victim impact statements may

give lip service to the involvement of victims generally in the process, but there

are a number of other issues to be considered.105 Victim centred sentencing

strategies such as mediation and conferencing should be investigated and trialled

with a view to permanent implementation.

• Sentencing should not be directly influenced by law and order imperatives,106

nor should it be in response to public opinion, as public opinion may not be

properly informed in relation to all of the relevant issues.107 There is a valid

argument however (put forward by the judges in this study), for sentencing to be

an expression of community values. Some judges extended this also to

community expectations, although this has the potential for the incorporation of

inappropriate matters into the sentencing process, and caution would be needed.

• There is considerable room for improvement in the relationship between the

courts and media, and more generally the courts and the community.

Perceptions that the courts are out of touch and handing down inappropriately

light sentences are often found to be untrue when previous studies are

105

106

107

These are discussed in chapter 6 at part 9.See discussion of this in chapter 7 at part 2.Despite this term becoming somewhat cliched, (see chapter 7 at 3.3.2).

478

examined.108 In many cases studies found that the attitudes of the public toward

sentences were the same as the courts, when the full details of the case were

made available. The appointment of court liaison officers should be considered

for all levels of courts, and should be properly funded. This is however only one

answer to the problem, and there should be widespread discussion as to other

strategies.

• Consideration should be given to the establishment of a Sentencing Commission

or Council, which would have the role of education and research in sentencing

matters. This would be of assistance to the judges; the development of policy,

both legislative and otherwise; sentencing researchers and commentators; and

would enhance generally the standing of the courts.

• Finally, consideration should be given to similar research to the present study in

relation to the perceptions of judicial officers as to the sentencing process in the

lower courts. This would provide a valuable complement to the findings of this

study.

The beginning of the new millennium is a useful time for the courts to reconsider issues

in criminal justice, and sentencing in particular. There is pressure for change in the

sentencing literature, from the media and the community as a whole. Likewise,

constant criticism of what the courts are doing, often unfounded, can be corrosive of

public confidence in the administration of justice. In other jurisdictions, perceptions

that the courts were not acting appropriately have resulted in “solutions” such as

sentencing grids and mandatory minimum sentencing. Without an improved

relationship between the courts and the community, the misconceptions can and will

continue, and the outcomes which emerge may not be palatable ones. It is hoped that

the findings of this study will contribute to a better understanding of the sentencing

process by the various stakeholders, not least, judicial officers themselves.

108 See chapter 7 at part 3.

479

Appendix

Interview with the Honourable Dean Wells, Former

Minister for Justice and Attorney-General (Goss

Government)

Interview conducted by Geraldine Mackenzie at Government House, Brisbane on

12 September 1996.

When I was at University as a lecturer, I made study of the sentencing remarks of judges on

appeals. I found that very interesting because it was on appeals that you would be most

likely to find judges referring to the theories and philosophies which actuated the decisions

that they were handing down. I found it a very confusing melange of ideas in the minds of

the judges who were doing the sentencing. They would refer to the three great pillars of our

sentencing law; the reform of the offender, the retribution of the community and they’d

refer to the deterrence of the offender, both general and specific deterrence, which they

often didn’t discriminate between. General deterrence, deterring the community from

committing the offence and specific deterrence, deterring the offender from reoffending.

What struck me was that these judges were referring to these things as triple pillars of our

law or as triple objectives of our law, whereas they were in fact inconsistent objectives.

The objective of visiting the offender’ s own crime upon himself of course is totally

inconsistent with the objective of reforming the offender. The retributivists of course hold

the view that the returning of the offender’s own crime upon himself is the measure of the

extent of the punishment, whereas the reform theory holds that the measure of the extent of

the punishment is when you actually reform the person and let him out into the community

and rehabilitate him. The deterrence theory is going to be inconsistent with the retributive

theory, because if you are going to punish as much as is necessary to deter an individual

from committing the offence again, then that quantum is going to be different from the

amount that you would punish the person if the person was simply getting the retributive

punishment of the community. So I was intrigued at the fact that the judges were totally

480

and utterly confused on the issue of sentencing, and indeed didn’t know that they were

confused on the issue of sentencing.

What I was anxious to do was to introduce a Bill which referred to the philosophy of

punishment which I believed to be correct, and that was the utilitarian theory of

punishment. I am a Benthamite utilitarian and I put my utilitarianism to bear in the

construction of this Bill and of course in the construction of this section, [s 9] so you’ ll see

nothing in that Bill about retribution. I went through the Bill and carefully screened out

everything that the authors of the Bill put in about retribution after I told them not to put

anything about retribution in.

You can only get retributivism in [s 9(l)(a)] if you imagine that retributivism is an

ingredient of justice. There wasn’t anything else I could do. I had to use the word just in

the Bill, I couldn’t really take that clause out. I knew that it would be used as a backdoor

device from time to time, by confused or vindictive people to reintroduce retributivism, but

what else could I do? If people are going to introduce retribution, if they mean to introduce

it, then they’ll introduce it through that clause. But there wasn’t anything else that I could

do. The word “just” does not mean retributive, and I hope that that would be read in the

light of the preamble.

I ’m referring to Hansard p.703 on 13 November 1992. The Bill is based on the idea of

protecting society from harm. The preamble reads:

Whereas - society is entitled to protect itself and its members from harm. The

criminal law and the power of courts to impose sentences on offenders represent

important ways in which society protects itself and its members from harm. Society

may limit the liberty of members of society only to prevent harm to itself or other

members of society

Obviously what that’ s doing is importing John Stuart Mill ’ s harm principle. The preamble

which I wrote was something that sounded much more like John Stuart Mill than this

preamble, but I can’t protect statutes from the art of the parliamentary draftsman who is

481

determined to write it in plain English. Not that M ill’s language wasn’t plain, it’ s just that

it was a little bit more elegant, but nevertheless it’ s the same content; that is, clearly

importing a philosophical consideration into the Bill.

Uncbr the amendments to the Acts Interpretation Act it is now possible for a court to take

into account the second reading speech of the Minister introducing the Bill, and so for that

reason I put in these words which were straight out of a philosophy lecture room. AThe

Bill is based on the idea of protecting society from harm. Notions such as the doctrine of

proportionality which is derived from the philosophy of retributivism is not part of the Bill.

So vhat I was clearly doing was excluding the retributivist philosophy which actuates the

deciiions of many judges. Now for those judges who actually understand it, and have this

dravn to their attention, they will know that it’ s no longer on as a result of this Bill for

then to clap some middle aged menopausal woman in jail for a week to teach her a lesson

for sioplifting. It’ s not on to get some young larrikin and slot them for a fortnight for doing

something which actually has not harmed any person, but has nevertheless revealed anti-

socid tendencies, just to teach them a lesson. The purpose of punishment has got to be

soundly based in what the protection of society requires.

Nov the logical consequence of the preamble and of s 9(1), which must be interpreted in

the 1 ght of the preamble and of the second reading speech, is this - that a person should go

to jal if they represent a threat to society which can be dealt with only by sending them to

jail, md they should not go to jail in any other circumstances at all. And to that end the

Pentities and Sentences Act contained a vast range of new sentencing options which were

designed to give judges and magistrates the opportunity to deal with people in other

ingeiious and different ways. So that was the purpose of the legislation, it was very clear

indeed. I am prepared to argue the demerits of the philosophy of retributivism at great

lengh.

Now there are some people that ought to go to jail, and those people who ought to go to jail

are tiose who society, for its own protection, needs to have in jail. A logical consequence

of tht utilitarian theory of punishment is that society must do all, but only, what it needs to

do tc protect itself: and the consequence of that is that if somebody is a dangerous offender,

482

then ihe term of their punishment should be that period during which they will dangerous to

sociey. Therefore, I included the Act the dangerous offender principles, which were the

subje:t of great deal of debate from retributivists such as the defence lawyers who operate

out o' the council for civil liberties. These people didn’t have any philosophy, they didn’t

have my analysis; all they had was their vested interests in being able to say to their clients

- wel I ’ve got a good chance of getting you out at some stage. But, those vested interests

were nterests that I was prepared to override on this occasion for the sake of philosophical

consistency.

I had quite a hand in a lot of the Acts. I would frequently redraw sections. I drew the

preamble, the parliamentary counsel redrafted it, I blue pencilled, I crossed out a number of

subsections which had been put into section 9, because someone drafted explicitly the sub-

secticn that said “We punish in order to make the person pay his debt to the society” . What

absohtely arrant nonsense. How can somebody going to jail pay a debt to society? There’s

no can in which a loss of life or disfigurement or grievous bodily harm, can be repaid.

There is no amount of suffering that any individual can themselves undertake that will

make recompense for suffering that has been inflicted upon another person. It’s not a

sensible objective of public policy. The only sensible objective of public policy is to do

what you can to maintain the quality of life of those who survive. That doesn’t involve

inflicing gratuitous pain on people, it just involves protecting the community against

further recrudescence of criminal behaviour by this person and providing restoration of

whatever quality of life can be restored to the victims of the crime.

The changes to the Acts Interpretation Act meant that constantly from then on, from the

time tiat I introduced the amendments to the Acts Interpretation Act, I explicitly followed a

deliberate policy of using second reading speeches as a means of providing an aid to

interpretation and the preamble and the extract I quoted from my second reading speech

was put of that program. Now, whether it comes to anything or not, I don’t know. Only

empiical research will show that. I ’ve got enormous respect for the legal ability of the

Benci and the barristers who serve it, but I don’t think that very many of them have got

very nuch philosophical analysis and I don’t think that they’d all know the difference

between Jeremy Bentham and Immanuel Kant as far as their philosophy of punishment is

4 8 3

concerned.

The purpose of government is to ensure, as far as possible, that every individual has an

equal opportunity of a happy, satisfying and fulfilling life. The purpose of a legal system is

to protect society from harm and to protect its individual members from harm. To that end,

people have to come before courts and they have to be sentenced, and the legitimate

objectives of that sentencing would be those which serve the purpose of protecting society

from harm. Those might be imprisonment for the purposes of deterrence, or imprisonment

for the purposes of incapacitation, that is, preventing the person from being able to do it

again. Those are the circumstances in which you would imprison. Other devices would be

used with an attempt to reform the person and that would of course, would have to be on a

sliding scale, or on shifting sands would perhaps be better metaphor, according to the

particular circumstances of the case. One would have to make a prognosis in the case of

each person what would be best calculated to reform them. Judges of course do that all the

time when they make sentencing decisions. They say this is your first offence and therefore

we’ ll give you another chance. That kind of remark is anticipating what is going to be most

likely to effect the reform, the rehabilitation of the offender, and whether you use a

community service order, whether you use a fine, whether you use home detention, whether

you use a variety of other options that are available to judges and other sentencers these

days; is going depend on all the circumstances of the case. It becomes an imprecise ait of

course, because human beings are infinitely diverse creatures, but even in a sea of

imprecision you can nevertheless divine general rules which are most likely to effect the

optimum desiderata.

But I ’ ll have to give you an example to answer to answer your question from another area.

I became concerned at one stage that in respect of child sexual abuse, there was a false

doctrine going around the District Court. Barristers were saying things like, this is a

criminal court, there is no evidence that there has been permanent damage to this child,

given that it is a criminal court, then the “beyond all reasonable doubt” principle applies,

therefore the court must be constrained to assume that there is no permanent damage to the

child, therefore the offender should be sentenced on the basis that there is not permanent

damage to the child. So these cases were drawn to my attention by the media and I spoke to

484

the Director of Prosecutions and I said look, this is outrageous that decisions are being

made on the basis that there is no permanent damage to the child. Why don’t we get

somebody to do some longitudinal studies to show that over a lifetime people who have

suffered this kind of interference do suffer from permanent damage and then pick a pretty

clear cut case and run the appeal on that basis.

I asked the Director of Prosecutions, just wait for somebody to say that and then run the

appeal and so they did. Of course the case of H changed the sentencing landscape. I

believe that on the very same day that the decision in H was brought down, a judge in the

District Court said, “Yesterday I would have given you a non-custodial sentence, but now

the Court of Appeal has taken the decision, and as a result of that, you will have to have a

custodial sentence.” Such people were a danger to society, and even if they were never

going to commit another offence, utilitarian considerations required that they should go to

jail, because the child would obviously be in fear of them, and that fear needed to be

expunged in some way, by the knowledge that the person had been incapacitated by being

taken out of society. Their incarceration would be restorative in that way.

Again, you can only achieve so much. Now I do know that there was subsequently a much

higher rate of incarceration of those people, I remember one case where I asked the

Director of Prosecutions to appeal; I mean the understanding between him and me would be

that he would canvass with me cases where it was appropriate to ask for an indefinite

sentence. There was one case where the person had been left babysitting a number of

children around about the age of one and had violated them all in the grossest way and we

sought an indefinite sentence. We were unable to get an indefinite sentence and there was

enormous judicial resistance to doing it, resistance which derived from the retributive

doctrine of proportionality. So, even when we use the power of the legislature to dislodge

an erroneous belief structure which is in the minds of the legal establishment, that belief

structure is going to be reintroduced by some means.

Now the attempt to introduce philosophical clarity by legislation is like the line from

Camelot - one brief shining moment - you can show the possibilities of an alternative way

of going and its a philosophy that in many cases I ’ve brought to bear with respect to the

4 8 5

reforms that I introduced. Not that I expected them to permanently change, because the

vested interests of various people were going to be sufficient to ensure that they wouldn’t

be permanent changes, but nevertheless, like the approach Gough Whitlam took in 72-75, it

showed what could be done.

Now, all that they [the Coalition] think that is wrong with the Penalties and Sentences Act,

all that they’ve ever identified, is that it says that prison should be a last resort. Of course,

that merely put into the words of a statute words that were constantly uttered by judges and

which were, in any case, in the minds of judges when they were sentencing anyway. So if

that is their only objection to the statute, I was prepared to take that phrase out just for the

sake of keeping people happy. The consequence of taking that particular sentence out of

the statute would simply be that the law would revert to what it was before the statute was

enacted, which was the same as what it was after the statute was enacted; so I wouldn’t be

doing any harm by taking that provision out at all. But, I fortunately never got around to

actually doing that, they haven’t got round to doing it either.

Section 9(2) was the enactment of some of things that were being taken into account. There

were things that were in the original draft of this; like the extent to which the sentence is

proportional to the offence committed. Those kinds of principles were included in here, I

crossed them out because, proportionality is part of the doctrine of retributivism. If the

sentence is proportional to the commission of the offence, then it ceases to become possible

to let somebody go, even though they are remorseful and even though they have done no

harm to any individual’s person, and even though the chances of doing it again are

insignificant. So it undercuts the whole philosophy of the Act to include something like the

doctrine of proportionality. Two things follow from the doctrine of retributivism, the

doctrine of retributivism is very philosophically elegant. It goes something like this, the

offence should be followed by an equal hit back from the society. The strike back should

be, in effect, the offender’s own offence returning upon himself. By striking against society

you should thereby be striking at yourself, and therefore the strike should be proportional to

the extent to which you hit society. It follows from this that the punishment must fit the

crime in the sense of being proportional to the crime and other factors which would reduce

or increase the imprisonment, if we are talking about incarceration, are nothing to the

486

purpose. Consequently, if you have in custody, somebody who you know to be dangerous

by virtue of the fact that you know beyond all reasonable doubt, and as a result of the

decision of the judge and jury that he has co mmitted one brutal murder; but you also know,

on the balance of probabilities that there are five other murders that he committed, and you

know from your experience of having him in jail that this person is a serial killer who

cannot help himself and will kill again if you let him out, and you know that on the balance

of probabilities, then you cannot keep him in jail beyond the tariff for a life sentence. That

is a logical consequence of the retributivist philosophy.

It is also a logical consequence of the retributivist philosophy, if the punishment of

dangerous driving causing death is x months or years in jail, that the person who is dying of

cancer and will in any case, die within a few days must go to jail. It is a logical consequence

of the retributivist philosophy that as Immanuel Kant said if the last trumpet had already

sounded, the last offender should still be hanged. Now that retributivist philosophy is the

palpable absurdity that would have been reintroduced into the law by the provision which I

struck out.

By deleting those, I was relying on the canon of statutory interpretation, expressio unius est

exclusio alterius so that something that w as not mentioned in that list, couldn’t be relied on.

Of course, if it ever comes down to that and if you ever get a judge who is clever enough to

think of it, then the scheme of the statute will work. But it probably won’t work.

The logical structure which was in my mind, and which I think is implied by the format in

which I introduced the Bill, is that the preamble says that this is what you are supposed to

do, you are supposed to protect the community, and mine says here are the pegs that you

can hang your hat on so off you go, your job is to protect the community and here is some

general rules. The thing with any utilitarian theory is that it’s a matter of calculation of

consequences and the circumstances that actually present themselves in a particular case

and these are principles on which the judge can hang his hat as long as he or she recalls

what they are supposed to be doing is protecting the community. So that means that there is

no particular weight in these.

487

General deterrence

I am aware of the philosophical difficulties which exist for deterrence. I am aware that the

philosophy of general deterrence can mean grave punishment of somebody who in other

circumstances would only get a minor punishment. I ’m also aware that the philosophy of

general deterrence has been argued to be capable of enabling punishment of an innocent

person to take place in order to deter the others. With respect to special deterrence that

actually works to set a person on the right path, there are the same philosophical objections

to that, whether it does or not is unclear, and people who are engaged in sentencing people

are very often unclear in their own minds as to whether they are sentencing them in order to

teach [that person] or to teach others a lesson. So yes, I am aware of all these philosophical

problems, nevertheless, deterrence is something which is justified by utilitarian theory, it’s

a matter of consequences. The difference between the utilitarians and the retributivists is

that the utilitarians look at what is going to do some good in the circumstances. The

retributivists say it doesn’t matter whether the consequences are going to be good or bad,

you do this just because it’ s right or proportional or whatever. Now, if you once allow in

the proposition that people must do what is necessary to protect the community, then it

becomes an empirical judgment of a particular point in time whether a deterrent punishment

is going to be benign in terms of protecting the community and if it is, then it should be

undertaken. So that means in some circumstances the use of deterrent punishments in the

area of housebreaking as in other areas can be justified, the only question is are they the

optimum course of action in any particular set of circumstances.

Now if they ever are the optimum course of action, it’s by virtue of the fact that the judges

and magistrates who are operating are operating only on a slice of the pie; (the whole pie is

the whole social milieu in which the criminal law exists and they’re just operating at the

sharp end of it). The rest of the social milieu is the milieu in which crime prevention

strategies ought to be undertaken and the utilitarian philosophy would say, well these

people ought to have jobs in the first place then they wouldn’t be motivated to do this. It

would also say that the houses should be designed so that people can’t do this, that the

lighting and the street architecture and the demography ought to be organised so that it’ s

unlikely that this kind of thing should happen. But that’s not the world that we’re living in;

488

the world that we’re living in is a much inferior world to that, in which the only people

whose attention is being drawn to the problem of crime in a particular area is the people

who are supposed to locking up the people who do it. Now that’ s a very regrettable

situation, but they are then placed in the situation that they’ve got to do what is best in the

circumstances and that’s a judgment which they’re going to have to make in all the

empirical circumstances, which they know better than I do, or than the legislature can

anticipate.

I am a utilitarian, I believe that the consequences that what one must strive for what’s best

in the circumstances, what’ s best for the generality of human kind in the circumstances, and

it’ s going to have to be up to judges and magistrates to make that judgment. I would hope

that there is in the Penalties and Sentences Act a great deal of material which would suggest

alternative ways of dealing with people rather than to lock them up. There are indeed other

ways in incapacitating offenders of this kind rather than locking them up. There are

constraints that can be put on their behaviour, there are programs that can be undertaken,

short of locking them up, but ultimately it is up to the decision maker on the spot.

4 8 9

Bibliography

“ALP Slams Mandatory Sentencing Deal” , ABC News Online, 28 July 2000

“How Courts Interact with the Media” , “ The Law Report” Radio Broadcast, ABC Radio

National, 10 November 1998

Community Crime Prevention Attitudes, Australian Bureau of Statistics, Queensland

Office, 1987

“Sentencing - Guideline Judgments” (1998) 10 Judicial Officers Bulletin 67

Hon Justice Michael Adams, “Launch of UNSW Law Journal Forum” (1999) 22 UNSW

Law Journal 257

Ronald Akers, “Rational Choice, Deterrence, and Social Learning Theory in

Criminology: The Path Not Taken” (1990) 81 Journal of Criminal Law and

Criminology 653

Jay Albanese, “Concern About Variation in Criminal Sentences: A Cyclical History of

Reform” 75 Journal o f Criminal Law and Criminology 260

Christine Alder and Joy Wundersitz (eds), Family Conferencing and Juvenile Justice:

the Way Forward o r Misplaced Optimism?, Australian Institute of Criminology

(available on-line at http://www.aic.gov.au/publications/lcj/family/index.html),

Canberra, 1994

Francis Allen, “The Decline of the Rehabilitative Ideal” in Andrew von Hirsch and

Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Punishment,

2nd ed, Hart Publishing, Oxford, 1998

4 9 0

Judith Allen, Sex and Secrets: Crimes Involving Australian Women, Oxford University

Press, Melbourne, 1990

Michael Allen, “Sentencing Guidelines: Lessons to be Learned?” (1988) 39 Northern

Ireland Legal Quarterly 315

Rodney Allen, “Literature and the Judicial Role: Why Judges Should Read Novels and

Mandatory Sentencing Should be Rejected” (2000) 25 Alternative Law Journal 157

Albert Alschuler, “The Failure of Sentencing Commissions” (1991) 141 New Law

Journal 829

H A Amankwah, “Post-Mabo: The Prospect of the Recognition of a Regime of

Customary (Indigenous) Law in Australia” (1994) 18 University o f Queensland Law

Journal 15

American Friends Service Committee, Struggle fo r Justice, Hill and Wang, New York,

1971

James Anderson, Jeffrey Kling and Kate Stith, “Measuring Inteijudge Sentencing

Disparity: Before and After the Federal Sentencing Guidelines” (1999) 42 Journal of

Law and Economics 271

Kevin Anderson, “Sentencing in Magistrates’ Courts” in Ivan Potas (ed), Sentencing:

Problems and Prospects, Proceedings of a Seminar held at Australian Institute of

Criminology, 18-21 March 1986, Canberra, 1987

Livingston Armytage, Educating Judges: Towards a New Model o f Continuing Judicial

Learning, Kluwer Law International, The Hague, 1996

Andrew Ashworth, “The Criminal Justice Act 1991” in Colin Munro and Martin Wasik

(eds), Sentencing, Judicial Discretion and Training, Sweet and Maxwell, London, 1992

4 91

Andrew Ashworth, “Criminal Justice and Deserved Sentences” (1989) Criminal Law

Review 340

Andrew Ashworth, “Criminal Justice, Rights and Sentencing: A Review of Sentencing

Policy and Problems” in Ivan Potas (ed), Sentencing in Australia: Issues, Policy and

Reform, Australian Institute of Criminology, Canberra, ACT, 18-21 March 1986

Andrew Ashworth, “Desert” in Andrew von Hirsch and Andrew Ashworth (eds),

Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing,

Oxford, 1998

Andrew Ashworth, “Deterrence” in Andrew von Hirsch and Andrew Ashworth (eds),

Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing,

Oxford, 1998

Andrew Ashworth, “Influences on the Creation of Criminal Law and Criminal Policy in

England” (1984) 13 Anglo-American Law Review 1

Andrew Ashworth, “Interpreting Criminal Statutes: A Crisis of Legality?” (1991) 107

Law Quarterly Review 419

Andrew Ashworth, “The New English Sentencing System” (1992) 25 University of

California Law Review 755

Andrew Ashworth, “Non-custodial Sentences” (1992) Criminal Law Review 242

Andrew Ashworth, “Punishment and Compensation: Victims, Offenders and the State”

(1986) 6 Oxford Journal of Legal Studies 86

Andrew Ashworth, “Reflections on the Role of the Sentencing Scholar” in Chris

Clarkson and Rod Morgan (eds), The Politics of Sentencing Reform, Clarendon Press,

Oxford, 1995

492

Andrew Ashworth, “Restorative Justice” in Andrew von Hirsch and Andrew Ashworth

(eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998

Andrew Ashworth, Sentencing and Criminal Justice, 2nd ed, Butterworths, London,

1995

Andrew Ashworth, “Sentencing Reform Structures” in Michael Tonry (ed), Crime and

Justice: A Review of Research, 16, University of Chicago Press, Chicago, 1992

Andrew Ashworth, “Structuring Sentencing Discretion” in Andrew von Hirsch and

Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd

ed, Hart Publishing, Oxford, 1998

Andrew Ashworth, “Techniques of Guidance on Sentencing” (1984) Criminal Law

Review 518

Andrew Ashworth, “Victim Impact Statements and Sentencing” (1993) Criminal Law

Review 498

Andrew Ashworth et al, Sentencing in the Crown Court: Report of an Exploratory

Study, Occasional Paper no 10, Centre for Criminological Research, University of

Oxford, Oxford, 1984

Andrew Ashworth and Andrew von Hirsch, “Recognising Elephants: The Problem of

the Custody Threshold” (1997) Criminal Law Review 187

Andrew Ashworth and Michael Hough, “Sentencing and the Climate of Opinion”

(1996) Criminal Law Review 776

Andrew Ashworth and Elaine Player, “Sentencing, Equal Treatment, and the Impact of

Sanctions” in Andrew Ashworth and Martin Wasik (eds), Fundamentals of Sentencing

Theory, Clarendon Press, Oxford, 1998

493

Ann Aungles, ‘“ Truth in Sentencing’ : Truth or Half Truth” in ‘Tru th in Sentencing’:

Tru th o r H a lf Truth, Proceedings of the Institute of Criminology No 78 Sentencing,

Sydney, University of Sydney Faculty of Law, 1988

Australian Bureau of Statistics, Crime and Justice: Prisoners in Austra lia ,

Commonwealth of Australia, Canberra, 2001

Australian Bureau of Statistics, Prisoners in Australia 1999, Canberra, 1999

Australian Law Reform Commission, Aboriginal Customary Law - The Criminal Law,

Evidence and Procedure, Australian Law Reform Commission (ALRC DP 20),

Canberra, 1984

Australian Law Reform Commission, The Commonwealth Prisoners Act, Australian

Government Publishing Service (ALRC 43), Canberra, 1987

Australian Law Reform Commission, Interim Report into Sentencing Federal

Offenders: Report no 15, Australian Government Publishing Service (ALRC 15),

Canberra, 1980

Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws,

Australian Law Reform Commission (ALRC 31), Canberra, 1986

Australian Law Reform Commission, Seen and Heard: P rio rity fo r Children in the

Legal Process: Report No 84 (chapter 19: Sentencing), Australian Law Reform

Commission (ALRC 84), Canberra, 1997

Australian Law Reform Commission, Sentencing: Penalties, Australian Government

Publishing Service (ALRC DP 30), Canberra, 1987

Australian Law Reform Commission, Sentencing: Prisons, Australian Government

Publishing Service (ALRC DP 31), Canberra, 1987

494

Australian Law Reform Commission, Sentencing: Procedure, Australian Law Reform

Commission (ALRC DP 29), Canberra, 1987

Australian Law Reform Commission, Sentencing: Reform Options, Australian

Government Publishing Service (ALRC DP 10), Canberra, 1979

Australian Law Reform Commission, Sentencing: Report No 44, Australian

Government Publishing Service (ALRC 44), Canberra, 1988

Australian Law Reform Commission, Spent Convictions, Australian Government

Publishing Service (ALRC 37), Canberra, 1987

Mirko Bagaric, “Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or

Appropriate Sentencing Goals?” (2000) 24 Criminal Law Journal 21

Mirko Bagaric, “Proportionality in Sentencing: Its Justification, Meaning and Role”

(2000) 12 Current Issues in Criminal Justice 142

Mirko Bagaric, “Sentencing: The Road to Nowhere” (1999) 21 Sydney Law Review 597

Mirko Bagaric, “Suspended Sentences and Preventative Sentences: Illusory Evils and

Disproportionate Punishment” (1999) 22 UN SW Law Journal 5

J Baker, “Are the Courts Becoming More Lenient? Recent Trends in Convictions and

Penalties in NSW Higher and Lower Courts” (1998) 40 Crime and Justice Bulletin 9

Richard Baker, Land is L ife : From Bush to Town - the Story of the Yanyuwa People,

Allen and Unwin, St Leonards, NSW, 1999

Sheila Balkan, “Sentencing Matters (book review)” (1996) 32(10) T r ia l 74

Paul Ban, “ Slow Progress: The Legal Recognition of Torres Strait Islander Customary

Adoption Practice” (1997) 4(7) Indigenous Law Bulletin 11

495

Jenny Bargen, “A Critical View of Conferencing” (1995) 28 The Australian and New

Zealand Journal of Criminology 100

Kerry Barker and John Sturges, Decision Making in Magistrates’ Courts, Fourmat

Publishing, London, 1986

Eola Barnett, “Criminal Offence Victims Act 1995 (Qld) - Some Observations” (1996)

12 Q U T Law Journal 88

Sir John Barry, The Courts and Criminal Punishments, 1969

Scott Baum, “Self-reported Drink Driving and Deterrence” (1999) 32 The Australian

and New Zealand Journal of Criminology 247

Helen Bayes, “Punishment is Blind: Mandatory Sentencing of Children in Western

Australia and the Northern Territory” (1999) 22 UN SW Law Journal 286

J M Beattie, Crime and the Courts in England 1660-1800, Clarendon Press, Oxford,

1986

Cesare Beccaria, On Crimes and Punishments, and Other Writings, Cambridge

University Press (edited by Richard Bellamy; translated by Richard Davies, Virginia

Cox), Cambridge, 1995

Katherine Beckett, Making Crime Pay: Law and Order in Contemporary Politics,

Oxford University Press, New York, 1997

Katherine Beckett, “Political Preoccupation with Crime Leads, Not Follows Public

Opinion” (1997) 8(5) Overcrowded Times 1

Jeremy Bentham, “Punishment and Deterrence” in Andrew von Hirsch and Andrew

Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford, 1998

496

Deryk Beyleveld, “Deterrence Research and Deterrence Policies” in Andrew von Hirsch

and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy,

2nd ed, Hart Publishing, Oxford, 1998

Deryck Beyleveld, “Deterrence Research as a Basis for Deterrence Policies” (1979) 18

The Howard Journal 135

Geoffrey Blainey, A Shorter H isto ry of Australia, William Heinemann Australia,

Melbourne, 1994

Tracey Booth, “The Dead Victim, The Family Victim and Victim Impact Statements in

New South Wales” (2000) 11 Current Issues in Criminal Justice 292

Anthony Bottoms, “Five Puzzles in von Hirsch’s Theory of Punishment” in Andrew

Ashworth and Martin Wasik (eds), Fundamentals of Sentencing Theory, Clarendon

Press, Oxford, 1998

Anthony Bottoms, “The Philosophy and Politics of Punishment and Sentencing” in

Chris Clarkson and Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon

Press, Oxford, 1995

J K Bowen, “The Alarming Growth of Crime” (1987/88) IP A Review 6

John Braithwaite, “Crime in a Convict Republic” (2001) 64 Modem Law Review 11

John Braithwaite, Crime, Shame and Reintegration, Cambridge University Press,

Cambridge, 1989

John Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts”

in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 25, The

University of Chicago Press, Chicago, 1999

497

John Braithwaite, “Shame and Criminal Justice” (2000) 42 Canadian Journal of

Criminology 281

Frank Brennan, “Self-Determination: The Limits of Allowing Aboriginal Communities

to be a Law Unto Themselves” (1993) 16 UNSW Law Journal 245

Sir Gerard Brennan, “Why be a Judge?” (1996) 14 Australian Ba r Review 89

Justice Stephen Breyer, “Federal Sentencing Guidelines Revisited” (1999) 14 Criminal

Justice 28

Roderic Broadhurst, “Aborigines and Crime in Australia” in Michael Tonry (ed), Crime

and Justice: A Review of Research, vol 21, The University of Chicago Press, Chicago,

1997

Roderic Broadhurst and Nini Loh, “The Phantom of Deterrence: The Crime (Serious

and Repeat Offenders) Sentencing Act” (1993) 26 The Australian and New Zealand

Journal o f Criminology 251

R G Broadhurst and R A Mailer, “The Recidivism of Prisoners Released for the First

Time: Reconsidering the Effectiveness Question” (1990) 23 The Australian and New

Zealand Journal o f Criminology 88

Stephen Brody, “How Effective are Penal Treatments?” in Andrew von Hirsch and

Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd

ed, Hart Publishing, Oxford, 1998

David Brown, “Battles Around Truth: A Commentary on the Sentencing Act 1989”

(1992) 3 Current Issues in Criminal Justice 329

David Brown, “Mandatory Sentencing: A Criminological Perspective” , UNSW

Symposium 2000 Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000

David Brown, “The Politics of Reform” in George Zdenkowski, Chris Ronalds and

Mark Richardson (eds), The Criminal Injustice System Volume Two, Pluto Press,

Sydney, 1987

4 9 8

David Brown et al, Brown, Fa rrie r, Neal and Weisbrot’s Crim inal Laws: Materials and

Commentary on Criminal Law and Process in New South Wales, 3rd ed, The Federation

Press, Sydney, 2001

Ken Brown, “Paper Promises?” (1999) 24 Alternative Law Journal 221

Mark Brown, “Serious Violence and Dilemmas of Sentencing: A Comparison of Three

Incapacitation Policies” (1998) Criminal Law Review 710

Mark Brown and Kenneth Polk, “Taking Fear of Crime Seriously: The Tasmanian

Approach to Community Crime Prevention” (1996) 42 Crime and Delinquency 398

Hon Denis Burke, “Australians Support NT Laws - Newspoll” , Media Release from

Office of the Chief Minister, N T, Darwin, 8 March 2000

Hon Denis Burke, “New Mandatory Sentencing Regime Underway Despite Federal

Claims” , Media release from Office of the Chief Minister, N T , Darwin, 1 September

2000

Paula-Jane Byrne, Criminal Law and Colonial Subject: New South Wales, 1810-1830,

Cambridge University Press, Melbourne, 1993

Michael Cain and Veronica Roby, The Impact of Truth in Sentencing Part 1 - The

Higher Courts, Sentencing Trends No 2, Judicial Commission of NSW, Sydney, 1992

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach,

Canadian Government Publishing Centre, Ottawa, 1987

Pat Carlen, Magistrates ’ Justice, Martin Robertson, London, 1976

499

Reginald Carter, Criminal Law of Queensland, 7th ed, Butterworths, Sydney, 1988

Peter Cashman, Sentencing Reform: A National Survey of Judges and Magistrates:

Prelim inary Report, Law Foundation of New South Wales, Sydney, 1979

Janet Chan, “Globalisation, Reflexivity and the Practice of Criminology” (2000) 33 The

Australian and New Zealand Journal o f Criminology 118

Janet Chan, “The Limits of Sentencing Reform” in George Zdenkowski, Chris Ronalds

and Mark Richardson (eds), The Criminal Injustice System Volume Two, Pluto Press,

Sydney, 1987

Janet Chan, “The New South Wales Sentencing Act 1989: Where Does Truth Lie?”

(1990) 14 Criminal Law Journal 249

Janet Chan, “Systematically Distorted Communication? Criminological Knowledge,

Media Representation and Public Policy” (1995) 28 The Australian and New Zealand

Journal o f Criminology 23

Paul Chan trill, “Community Justice in Indigenous Communities in Queensland:

Prospects for Keeping Young People out of Detention” (1998) 3(2) Australian

Indigenous Law Reporter 163

Meda Chesney-Lind, The Female Offender: G irls, Women and Crime, Sage

Publications, Thousand Oaks, Cal, 1997

Michael Chesterman, “Criminal Jury Trials in Australia: From Penal Colonies' to a

Federal Democracy” (1999) 62 Law and Contemporary Problems 69

Chief Justice of Queensland The Hon Paul de Jersey AC, “Led in, but now Leading:

Queensland and Federation” , Speech to Australasian Pioneer’s Club Annual Dinner,

United Services Club, Brisbane, 4 August 2000

500

Chief Judge of the District Court, D istric t Court of Queensland Annual Report 1997-

1998, District Court of Queensland, Brisbane, 1998

Kevin Clancy et al, “Sentence Decisionmaking: The Logic of Sentence Decisions and

the Extent and Sources of Sentence Disparity” (1981) 72 The Journal o f Crim inal Law

and Criminology 524

C M H Clark, A H isto ry of Australia Volume 1, Melbourne University Press,

Melbourne, 1977

Gay Clark and lyla Davies, “Victim Offender Mediation in Queensland” (1994) 14 The

Queensland Lawyer 169

Chris Clarkson and Rod Morgan (eds), The Po litics of Sentencing Reform, Clarendon

Press, Oxford, 1995

W Clifford, “What Works in Criminal Justice” (1982) No 52 Proceedings of the

Institute of Criminology 11

Peter Coal drake, Working the System: Government in Queensland 1983-1989,

University of Queensland Press, St Lucia, 1989

Criminal Justice Commission, Fear of Crime, Criminal Justice Research Paper Series

Volume 1, No 2, Brisbane, 1994

Commonwealth, Parliamentary Debates, Second Reading Speech, Human Rights

(Mandatory Sentencing of Juvenile Offenders) Bill 1999, Senate, 25 August 1999

(Senator Brown, Tasmania)

Peter Condliffe, “Bringing Victims to Justice: The Criminal Reparation Project” (1992)

22 Queensland Law Society Journal 523

5 0 1

Daniel O Conkle, “Religiously Devout Judges: Issues of Personal Integrity and Public

Benefit” (1998) 81 Marquette Law Review

Bree Cook, Fiona David and Anna Grant, Victims ’ Needs, Victims ’ Rights: Policies and

Programs fo r Victims of Crime in Australia, Australian Institute of Criminology,

Canberra, 1999

Christopher Corns, “Destructuring Sentencing Decision-Making in Victoria” (1990) 23

The Australian and New Zealand Journal of Criminology 145

Nicholas Cowdery, “Guideline Sentencing: A Prosecution Perspective” (1999) 11

Judicial Officers Bulletin 57

Nicholas Cowdery, “Mandatory Life Sentences in New South Wales” (1999) 22 UNSW

Law Journal 290

Wesley Cragg, The Practice of Punishment: Towards a Theory of Restorative Justice,

Routledge, London, 1992

James Crawford, Australian Courts of Law, Oxford University Press, Melbourne, 1993

James Crawford, “International Law and the Recognition of Aboriginal Customary

Laws” in Barbara Hocking (ed), International Law and Aboriginal Human Rights, Law

Book Company Limited, Sydney, 1988

James Crawford, “The Recognition of Aboriginal Customary Laws: An Overview” in

Chris Cunneen (ed), Aboriginal Perspectives on Criminal Justice, Institute of

Criminology, Sydney Law School, Sydney, 1992

Criminal Law and Penal Methods Reform Committee of South Australia, F ir s t Report:

Sentencing and Corrections, Adelaide, 1973

5 0 2

Francis Cullen, Bonnie Fisher and Brandon Applegate, “Public Opinion About

Punishment and Corrections” in Michael Tonry (ed), Crime and Justice: A Review of

Research, vol 27, The University of Chicago Press, Chicago, 2000

Francis Cullen and Karen Gilbert, “Reaffirming Rehabilitation” in Andrew von Hirsch

and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing, Oxford,

1998

Dato Param Cumaraswamy, Keynote Address to the UN SW Symposium 2000

Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000

Andrew Cumberland and Gregory Boyle, “Psychometric Predictions of Recidivism:

Utility of the Risk Needs Inventory” (1.997) 30 The Australian and New Zealand

Journal of Criminology 72

Chris Cunneen (ed), Aboriginal Perspectives on Criminal Justice, The Institute of

Criminology, Sydney University Law School, Sydney, 1992

Chris Cunneen, “Community Conferencing and the Fiction of Indigenous Control”

(1997) 30 The Australian and New Zealand Journal of Criminology 292

Chris Cunneen, “Criminology, Genocide and the Forced Removal of Indigenous

Children from their Families” (1999) 32 The Australian and New Zealand Journal of

Criminology 124

Theodore Curry, “Conservative Protestantism and the Perceived Wrongfulness of

Crimes: A Research Note” (1996) 34 Criminology 453

Stewart D’Alessio and Lisa Stolzenberg, “The Impact of Sentencing Guidelines on Jail

Incarceration in Minnesota” (1995) 33 Criminology 283

Kathleen Daly, “Celebrated Crime Cases and the Public’ s Imagination: From Bad Press

to Bad Policy?” (1995) 28 The Australian and New Zealand Journal of Criminology 6

5 0 3

Kathleen Daly and Michael Tonry, “Gender, Race and Sentencing” in Michael Tonry

(ed), Crime and Justice: A Review of Research, vol 22, The University of Chicago

Press, Chicago, 1997

David Daubney and Gordon Parry, “An Overview of Bill C-41 (The Sentencing Reform

Act)” in Julian Roberts and David Cole (eds), Making Sense of Sentencing, University

of Toronto Press, Toronto, 1999

Mary Daunton-Fear, Sentencing in South Australia, Law Book Co in association with

the Australian Institute of Criminology, Sydney, 1980

Mary Daunton-Fear, Sentencing in Western Australia, University of Queensland Press,

in association with the Australian Institute of Criminology, St Lucia, 1977

G L Davies and K M Raymond, “Do Current Sentencing Practices Work?” (2000) 24

Criminal Law Journal 236

Stephen Davis and Simon Kemp, “Judged Seriousness of Crime in New Zealand”

(1994) 27 The Australian and New Zealand Journal of Criminology 250

Sir Daryl Dawson, “Do Judges Make Law? Too Much?” (1996) 3 The Judicial Review

1

Scott Decker and Barbara Salert, “Predicting the Career Criminal: An Empirical Test of

the Greenwood Scale” (1986) 77 Journal of Criminal Law and Criminology 215

Keith Devlin, Sentencing Offenders in Magistrates ’ Courts, Sweet and Maxwell,

London, 1970

James Dignan, “The Crime and Disorder Act and the Prospects for Restorative Justice”

(1999) Criminal Law Review 48

504

Gavin Dingwell, “The Court of Appeal and ‘Guideline’ Judgments” (1997) 48 Northern

Ireland Legal Quarterly 143

Louise Dodson, “Canberra Withholds $20m from NT” , The Age, Melbourne, 1

September 2000

Anthony Doob, “Transforming the Punishment Environment: Understanding Public

Views of What Should be Accomplished at Sentencing” (2000) 42 Canadian Journal of

Criminology 323

Anthony Doob, “The United States Sentencing Commission Guidelines: If you don’t

know where you are going, you might not get there” in Chris Clarkson and Rod Morgan

(eds), The Po litics of Sentencing Reform, Clarendon Press, Oxford, 1995

Anthony Doob and Voula Marinos, “Reconceptualising Punishment: Understanding the

Limitations of the Use of Intermediate Punishments” (1995) 2 University o f Chicago

Law School Roundtable 413

Anthony Doob and Julian Roberts, “Public Punitiveness and Public Knowledge of the

Facts: Some Canadian Surveys” in Nigel Walker and Mike Hough (eds), Public

Attitudes to Sentencing Surveys from Five Countries, Gower Publishing Company

Limited, Aldershot, UK, 1988

Roger Douglas, “Rationalising Sentencing? The Victorian Sentencing Committee’ s

Report” (1988) 12 Criminal Law Journal 327

R A Duff, T r ia ls and Punishments, Cambridge University Press, Cambridge, 1986

Ian Dunbar and Anthony Langdon, Tough Justice: Sentencing and Penal Policies in the

1990s, Blackstone Press Limited, London, 1998

Ian Edwards, “Victim Participation in Sentencing: The Problems of Incoherence”

(2001) 40 The Howard Journal 39

5 0 5

William Eisler, The Furthest Shore: Images o f Terra A ustra lis from the Middle Ages to

Captain Cook, Cambridge University Press, Cambridge, 1995

Norbert Elias, The C ivilizing Process, Blackwell, London, 1939, 1994

Edna Erez, “Victim Participation in Sentencing: And the Debate Goes On” (1994) 3

International Review of Victimology 17

Edna Erez, “Victim Participation in Sentencing: Rhetoric and Reality” (1990) 18

Journal of Criminal Justice 19

Edna Erez, “Who’s Afraid of the Big Bad Victim? Victim Impact Statements as Victim

Empowerment and Enhancement of Justice” (1999) Criminal Law Review 545

Edna Erez and Kathy Laster, “Neutralizing Victim Reform: Legal Professionals’

Perspectives on Victims and Impact Statements” (1999) 45 Crime and Delinquency 530

Edna Erez and Linda Rogers, “Victim Impact Statements and Sentencing Outcomes and

Processes” (1999) 39 B rit ish Journal o f Criminology 216

Richard Evans, “Throwing Away the Key: “Get Tough” Penal Policies Solve Nothing”

(1994) Law Institute Journal 1131

Jarvis Finger, The Escapes from St Helena, Boolarong, Brisbane, 1987

Jarvis Finger, The St Helena Island Prison in Pictures, Boolarong, Brisbane, 1988

Mark Finnane, “After the Convicts: Towards a History of Imprisonment in Australia”

(1991) 24 The Australian and New Zealand Journal of Criminology 105

Mark Finnane, Punishment in Australian Society, Oxford University Press, Melbourne,

1997

506

Ross Fitzgerald, A H isto ry of Queensland from 1915 to the 1980s, University Of

Queensland Press, St Lucia, 1985

Ross Fitzgerald, A H isto ry of Queensland: From the Dreaming to 1915, University Of

Queensland Press, St Lucia, 1986

Ross Fitzgerald and Harold Thornton, Labor in Queensland: From the 1880s to 1988,

University Of Queensland Press, St Lucia, 1989

George P Fletcher, With Justice fo r Some: Protecting Victim’s Rights in Criminal

T r ia ls , Addison-Wesley Publishing Company, Reading, Massachusetts, 1996

Martin Flynn, “Fixing a Sentence: Are There any Constitutional Limits” (1999) 22

UN SW Law Journal 280

Martin Flynn, “International Law, Australian Criminal Law and Mandatory Sentencing:

the Claims, the Reality and the Possibilities” (2000) 24 Crim inal Law Journal 184

Michael Flynn, The Second Fleet: B rita in ’s Grim Convict Armada of 1790, Library of

Australian History, Sydney, 1993

William Foddy, Constructing Questions fo r Interviews and Questionnaires, Cambridge

University Press, Melbourne, 1993

Lois Forer, A Rage to Punish: The Unintended Consequences of Mandatory Sentencing,

W W Norton and Company, New York, 1994

R K Forward, Samuel Griffith, Oxford University Press, Melbourne, 1964

Hon Peter Foss, Address on Government Perspectives to UN SW Symposium 2000

Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000

507

Michel Foucault, Discipline and Punish: The B irth of the P riso n , Penguin Books,

London, 1977

Richard Fox, “Controlling Sentencers” (1987) 20 The Australian and New Zealand

Journal o f Criminology 218

Richard Fox, “The Killings of Bobby Veen: The High Court on Proportion in

Sentencing” (1988) 12 Criminal Law Journal 339

Richard Fox, “Legislation Comment: Victoria Turns to the Right in Sentencing Reform:

The Sentencing (Amendment) Act 1993 (Vic)” (1993) 17 Criminal Law Journal 394

Richard Fox, “The Meaning of Proportionality in Sentencing” (1994) 19 Melbourne

University Law Review 489

Richard Fox, “Order Out of Chaos: Victoria’s New Maximum Penalty Structure” (1991)

17 Monash University Law Review 106

Richard Fox and Arie Freiberg, “Ranking Offence Seriousness in Reviewing Statutory

Maximum Penalties” (1990) 23 The Australian and New Zealand Journal of

Criminology 165

Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed,

Oxford University Press, Melbourne, 1999

Marvin Frankel, Criminal Sentences: Law Without Order, Hill and Wang, New York,

1972

Marvin Frankel, “Sentencing Guidelines: A Need for Creative Collaboration” (1992)

101 Yale Law Journal 2043

Marvin Frankel and Leonard Orland, “A Conversation About Sentencing Commissions

and Guidelines” (1993) 64 Colorado Law Review 655

508

Marvin Frankel and Leonard Orland, “Fourteenth Annual Review of Criminal

Procedure: United States Supreme Courts and Courts of Appeals 1983-84: Sentencing

Commissions and Guidelines” (1984) 73 Georgetown Law Journal 225

Richard Frase, “Sentencing Guidelines in Minnesota and Other American States: A

Progress Report” in Chris Clarkson and Rod Morgan (eds), The Po litics of Sentencing

Reform, Clarendon Press, Oxford, 1995

Richard Frase, “Sentencing Principles in Theory and Practice” in Michael Tonry (ed),

Crime and Justice: A Review of Research, vol 22, The University of Chicago Press,

Chicago, 1997

Richard Frase, “State Sentencing Guidelines: Still Going Strong” (1995) 78 Judicature

173

Richard Frase, “The Uncertain Future of Sentencing Guidelines” (1993) 12 Law and

Inequality 1

Arie Freiberg, “Australian Drug Courts” (2000) 24 Crim inal Law Journal 213

Arie Freiberg, “Guerillas in our Midst?” in Mark Brown and John Pratt (eds),

Dangerous Offenders: Punishment and Social Order, Routledge, London, 2000

Arie Freiberg, “Legislation Comment: Truth in Sentencing? The Abolition of

Remissions in Victoria: Sentencing Act 1991 (Vic)” (1992) 16 Criminal Law Journal

165

Arie Freiberg, “Prison Populations Up, Sentencing Policy Harsher in Australia” (1998)

9(1) Overcrowded Times 1

Arie Freiberg, “Sentencing Reform in Victoria: A Case-Study” in Chris Clarkson and

Rod Morgan (eds), The Politics o f Sentencing Reform, Clarendon Press, Oxford, 1995

509

Arie Freiberg, “Three Strikes and You’re Out - It’ s not Cricket: Colonisation and

Resistance in Australian Sentencing” in Sentencing Policy in Comparative International

Perspective: Recent Changes within and across National Boundaries, University of

Minnesota Law School, May 1-3, 1998

Arie Freiberg and Richard Fox, “Sentencing Structures and Sanction Hierarchies”

(1986) 10 Criminal Law Journal 216

Arie Freiberg, Richard Fox and Michael Hogan, Sentencing Young Offenders,

Commonwealth Youth Bureau and Australian Law Reform Commission Sentencing

Research Paper No 11, Australian Law Reform Commission, Sydney, 1988

Arie Freiberg and Stuart Ross, “Change and Stability in Sentencing: A Victorian Study”

(1995) 13 Law in Context 107

Arie Freiberg and Stuart Ross, Sentencing Reform and Penal Change: The Victorian

Experience, The Federation Press, Sydney, 1999

Susanna Lobez; Interview with Professor Arie Freiberg, “Mandatory Sentencing: A

Wider Perspective” , The Law Report, ABC Radio National, Sydney, 18 April 2000

(Transcript available at:

http://www.abc.net.aU/m/talks/8.30/lawrpt/stories/sll9546.htm)

D J Galligan, “Guidelines and Just Deserts: A Critique of Recent Trends in Sentencing

Reform” (1981) Criminal Law Review 297

David Garland, “The Limits of the Sovereign State - Strategies of Crime Control in

Contemporary Society” (1996) 36 B rit ish Journal o f Criminology 445

David Garland, Punishment and Modem Society: A Study in Social Theory, Clarendon

Press, Oxford, 1990

Michael Gelacak, Ilene Nagel and Barry Johnson, “Departures Under the Federal

Sentencing Guidelines: An Empirical and Jurisprudential Analysis” (1996) 81

Minnesota Law Review 299

5 1 0

David Gibson, “Mandatory Madness: The True Story of the Northern Territory’s

Mandatory Sentencing Laws” (2000) 25 Alternative Law Journal 103

Alisdair Gillespie, “Victims and Sentencing” (1998) 148 New Law Journal 1263

Hon Murray Gleeson, “Who Do Judges Think They Are?” (1998) 22 Criminal Law

Journal 10

Deirdre Golash and James Lynch, “Public Opinion, Crime Seriousness, and Sentencing

Policy” (1995) 22 American Journal of Criminal Law 703

Russell Goldflam and Jonathon Hunyor, “Mandatory Sentencing and the Concentration

of Powers” (1999) 24 Alternative Law Journal 211

Matthew Goode, “Codification of Australian Criminal Law” (1992) 16 Criminal Law

Journal 5

Government Statistician’s Office, Prisoners in Queensland: Crime Statistics Bulletin

#5, Queensland Government, Brisbane, April 1999

Government Statistician’s Office, Queensland Past and Present: 100 Years o f Statistics

1896-1996, Queensland Government, Brisbane, 1998

Peter Grabosky and Paul Wilson, Journalism and Justice: How Crime is Reported,

Pluto Press, Sydney, 1989

P N Grabosky, “On the History of Punishment in Australian and New Zealand” (1991)

24 The Australian and New Zealand Journal of Criminology 139

Peter N Grabosky, “Patterns of Criminology in New South Wales, 1788-1973” in

Duncan Chappell and Paul Wilson (eds), The Australian Crim inal Justice System,

Butterworths, Sydney, 1977

5 1 1

A Douglas Graham, The Life of the Right Honourable S i r Samuel Walker Griffith, The

Law Book Co of Australasia Pty Ltd, Brisbane, 1939

Bligh Grant (ed), Pauline Hanson: One Nation and Australian Po litics, University of

New England Press, Armidale, NSW, 1997

Harold Grasmick, “The Strategy of Deterrence Research: A Reply to Greenberg” (1981)

72 Journal of Criminal Law and Criminology 1102

Donald Green, “Past Behavior as a Measure of Actual Behavior: An Unresolved Issue

in Perceptual Deterrence Research” (1989) 80 Journal of Crim inal Law and

Criminology 781

Sir Guy Green, “The Concept of Uniformity in Sentencing” (1996) 70 Australian Law

Journal 112

Wendell L Griffin, “The Case for Religious Values in Judicial Decision-Making”

(1998) 81 Marquette Law Review 513

Sir Samuel Griffith, Explanatory Letter to Draft of a Code of Crim inal Law,

Government of Queensland, Brisbane, 1897

Pamala Griset, “Criminal Sentencing in Florida: Determinate Sentencing’s Hollow

Shell” (1999) 45 Crime and Delinquency 316

Donald Hall, “Victim’s Voices in Criminal Court: The Need for Restraint” (1991) 28

American Criminal Law Review 161

5 1 2

Geoff Hall, “Reducing Disparity by Judicial Self-Regulation: Sentencing Factors and

Guideline Judgments” (1991) 14 New Zealand Universities Law Review 208

Geoff Hall, “Victim Impact Statements: Sentencing on Thin Ice?” (1992) 15 New

Zealand Universities Law Review 143

Judge R D Hall, “A Judicial Response to a Sensationalist Media” (1998) The Proctor 22

Richard Harding, “Prisons are the Problem: A Re-Examination of Aboriginal and Non-

Aboriginal Deaths in Custody” (1999) 32 The Australian and New Zealand Journal of

Criminology 108

Nathan Harris and Jamie Burton, “Testing the Reliability of Observational Measures of

Reintegrative Shaming at Community Accountability Conferences and at Court” (1998)

31 The Australian and New Zealand Journal of Criminology 230

H L A Hart, Punishment and Responsibility: Essays in the Philosophy o f Law,

Clarendon Press, Oxford, 1968

Linda Harvey and Ken Pease, “Guideline Judgments and Proportionality in Sentencing”

(1987) Criminal Law Review 96

Judge John Hassett, “Sentencing and Public Perception of the Courts” (1997) 9 Judicial

Officers Bulletin 57

Douglas Hay, “Property, Authority and the Criminal Law” in Douglas Hay, Peter

Linebaugh, John Rule, E P Thompson and Cal Winslow (eds), A lb ion 's Fatal Tree:

Crime and Society in Eighteenth-Century England, Pantheon Books, New York, 1975

Gerald Heaney, “The Reality of Sentencing Guidelines: No End to Disparity” (1991) 28

American Criminal Law Review 161

5 1 3

Carol Hedderman and Loraine Gelsthorpe, Understanding the Sentencing of Women,

Home Office, London, 1997

Ralph Henham, “The Importance of Background Variables in Sentencing Behaviour”

(1988) 15(2) Criminal Justice and Behaviour 255

Ralph Henham, “The Influence of Sentencing Principles on Magistrates’ Sentencing

Practices” (1986) 25 The Howard Journal 190

Ralph Henham, Sentencing Principles and Magistrates ’ Sentencing Behaviour,

Avebury, Aldershot, 1990

Richard Hil and Glenn Dawes, “The ‘Thin White Line’ : Juvenile Crime, Racialised

Narrative and Vigilantism - A North Queensland Study” (2000) 11 Current Issues in

Criminal Justice 308

Paul Hofer, Kevin Blackwell and Barry Ruback, “The Effect of the Federal Sentencing

Guidelines on Interjudge Sentencing Disparity” (1999) 90 Journal of Criminal Law and

Criminology 239

John Hogarth, Sentencing as a Human Process, University of Toronto Press, Toronto,

1971

Russell Hogg, “Mandatory Sentencing Laws and the Symbolic Politics of Law and

Order” (1999) 22 UN SW Law Journal 262

Russell Hogg, “Penality and Modes of Regulating Indigenous Peoples in Australia”

(2001) 3 Punishment and Society (forthcoming); extracted in Brown, et al, Crim inal

Laws (3rd ed) at 1464-7

Russell Hogg and David Brown, Rethinking Law and Order, Pluto Press, Annandale,

1998

514

Russell Hogg and Kerry Carrington, “Crime, Rurality and Community” (1998) 31 The

Australian and New Zealand Journal o f Criminology 160

Ross Homel “Flawed Order: The Administration of Justice in a “Get Tough” Era”

Brisbane, Faculty of Education, Griffith University, 2 June 1994

Ross Homel, Robyn Lincoln and Bruce Herd, “Risk and Resilience: Crime and

Violence Prevention in Aboriginal Communities” (1999) 32 The Australian and New

Zealand Journal o f Criminology 182

Roger Hood, Race and Sentencing: A Study in the Crown Court: A Report fo r the

Commission fo r Racial Equality, Clarendon Press, Oxford, 1992

Roger Hood, Sentencing in the Magistrates ’ Courts: A Study in Variations in Policy,

Stevens, London, 1962

Roger Hood, Sentencing the Motoring Offender: A Study of Magistrates’ Views and

Practices, Heinemann Educational, London, 1972

Michael Hough, “People Talking About Punishment” (1996) 35 The Howard Journal

191

Mike Hough and David Moxon, “Dealing with Offenders: Popular Opinion and the

Views of Victims - Findings from the British Crime Survey” (1985) 24 The Howard

Journal 160

Michael Hough and Julian Roberts, “English Believe Sentences Soft and Crime Rising”

(1998) 9(1) Overcrowded Times 1

Chris Howse, “Covering a Multitude of Sins: How can the NT Office of Aboriginal

Development have Concluded that Mandatory Sentencing has Little or Nothing to do

with Rising Aboriginal Imprisonment Rates?” (1999) 24 Alternative Law Journal 224

5 1 5

Chris Howse, “Towards a Dealing Just and Kind: Reflections on Gaoling Homeless

People and Mandatory Sentencing” (2000) 25 Alternative Law Journal 108

Gordon Hughes, The Mandatory Sentencing Debate, Position Paper Update, Law

Council of Australia, Canberra, August 2000

Robert Hughes, The Fatal Shore: A H isto ry of the Transportation of Convicts to

Australia , Collins Harvill, London, 1987

Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of

the National Enquiry into the Separation of Aboriginal and To rres Stra it Islander

Children from The ir Families, Commonwealth of Australia, Sydney, 1997

Scott Idleman, “The Limits of Religious Values in Judicial Decision Making” (1998) 81

Marquette Law Review 537

Scott C Idleman, “The Role of Religious Values in Judicial Decision-Making” (1993)

68 Indiana Law Journal 433

Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industria l

Revolution, 1750-1850, Macmillan, London, 1978

David Indermaur, “Offender Psychology and Sentencing” (1996) 31 Australian

Psychologist 15

David Indermaur, “Offenders’ Perceptions of Sentencing” (1994) 29 Australian

Psychologist 140

David Indermaur, Public Perception o f Sentencing in Perth, Western Australia, Report

to Criminology Research Council of Australia, 1987

David Indermaur, “Public Perception of Sentencing in Perth, Western Australia” (1987)

20 The Australian and New Zealand Journal of Criminology 163

5 1 6

Ireland Law Reform Commission, Consultation Paper on Sentencing, Ireland Law

Reform Commission, Dublin, 1993

John Irwin, James Austin and Chris Baird, “Fanning the Flames of Fear” (1998) 44

Crime and Delinquency 32

Mark Israel, “Telling Stories of Crime in South Australia” (1998) 31 The Australian and

New Zealand Journal o f Criminology 213

Liz Jackson, “Go to Jail” , Fo u r Comers, Sydney, ABC TV, 3 April 2000 (Transcript

available at http://abc.net.au/4comers/stories/sll5654.htm)

Nils Jareborg, “The Swedish Sentencing Reform” in Chris Clarkson and Rod Morgan

(eds), The Po litics o f Sentencing Reform, Clarendon Press, Oxford, 1995

Chief Justice Paul de Jersey “Speech at Opening of Community Justice Centres:

Bamaga and Kowanyama” 28 April 2000

Dianne Johnson and George Zdenkowski, Mandatory Injustice: Compulsory

Imprisonment in the Northern Territo ry, Centre for Independent Journalism, Sydney,

2000

Stephen Jones, “Deferment of Sentence: An Appraisal Ten Years On” (1983) 23 B rit ish

Journal o f Criminology 381

Debra Jopson, “Cherie Booth Tells UN of ‘Cruel and Inhuman Punishment’ “ , Sydney

Morning Herald, Sydney, 20 July 2000

Roger Joyce, Samuel Walker G riffith, University of Queensland Press, St Lucia, 1984

R B Joyce, “Samuel Walker Griffith” in D J Murphy and R B Joyce (eds), Queensland

Political Portra its 1859-1952, University of Queensland Press, St Lucia, 1978

5 1 7

Dan Kahan and Eric Posner, “Shaming White Collar Criminals: A Proposal for Reform

of the Federal Sentencing Guidelines” (1999) 42 Journal of Law and Economics 365

Andreas Kapardis, Psychology and Law: A Critical Introduction, Cambridge University

Press, Cambridge, 1997

Andreas Kapardis, Sentencing by Eng lish Magistrates as a Human Process, Asselia

Press, Nicosia, Cyprus, 1985

Andros Kapardis (ed), Sentencing: Some Key Issues, La Trobe University Press (special

issue of Law in Context vol 13(2) 1995), Melbourne, 1995

Catherine Kaukinen and Sandra Colavecchia, “Public Perceptions of the Courts: An

Examination of Attitudes Toward the Treatment of Victims and Accused” (1999) 41

Canadian Journal o f Criminology 365

John Kenny, Before the F ir s t Fleet: Europeans in Australia 1606-1777, Kangaroo

Press, Kenthurst, 1995

R G Kenny, An Introduction to Criminal Law in Queensland and Western Australia, 5th

ed, Butterworths, Sydney, 2000

B A Keon-Cohen, “The Mabo Litigation: A Personal and Procedural Account” (2000)

24 Melbourne University Law Review 893

Patrick Keyzer, “What the Courts and the Media Can Do to Improve the Standard of

Media Reporting of the Work of the Courts” (1999) 1 U T S Law Review 150

Sally Kift, “How Not to Amend a Criminal Code” (1997) 22 Alternative Law Journal

215

518

Martin Killias, Marcelo Aebi and Denis Ribeaud, “Does Community Service

Rehabiitate better than Short-term Imprisonment?: Results of a Controlled Experiment”

(2000) 19 The Howard Journal 40

Jonathai King, The F ir s t Fleet: The Convict Voyage that Founded Australia 1787-88,

Macmilan, Melbourne, 1982

Margo Kingston, “Judges Lash Howard’s ‘Clever Politics’ “ , Sydney Morning Herald,

Sydney 17 March 2000

Margo Kingston, O ff the Ra ils: The Pauline Hanson T rip , Allen and Unwin, St

Leonards, NSW, 1999

Justice Michael Kirby, “Attacks on Judges - A Universal Phenomenon” (1998) 72

Austral,an Law Journal 599

Justice Michael Kirby, “The Five Queensland Justices of the High Court of Australia”

(1996) .5 Australian Ba r Review 161

Justice Michael Kirby, “The Future of Criminal Law” (1999) 23 Criminal Law Journal

263

Justice Michael Kirby, “John Barry on Sentencing: A Contemporary Appraisal” (1979)

12 The Australian and New Zealand Journal o f Criminology 195

Justice Michael Kirby, “Judging: Reflections on the Moment of Decision” (1999) 18

Australian Ba r Review 4

Justice Michael Kirby, “Judicial Stress” (1995) 13 Australian Ba r Review 101

Justice Michael Kirby, “Judicial Stress - A Reply” (1997) 71 Australian Law Journal

791

5 1 9

Justice Michael Kirby, “Reasons for Judgment: ‘Always Permissible, Usually Desirable

and Often Obligatory’ “ (1994) 12 Australian Ba r Review 121

Kay Knapp, “Allocation of Discretion and Accountability Within Sentencing

Structures” (1993) 64 Colorado Law Review 679

Jan Kociumbas, The Oxford H isto ry of Australia Volume 2, 1770-1860: Possessions,

Oxford University Press, Melbourne, 1992

Leena Kurki, “Restorative and Community Justice in the United States” in Michael

Tonry (ed), Crime and Justice: A Review of Research, 27, The University of Chicago

Press, Chicago, 2000

Chantale Lacasse and Abigail Payne, “Federal Sentencing Guidelines and Mandatory

Minimum Sentences: Do Defendants Bargain in the Shadow of the Judge?” (1999) 42

Journal of Law and Economics 245

Nicola Lacey, “Community in Legal Theory: Idea, Ideal or Ideology” (1996) 15 Studies

in Law, Po litics and Society 105

Nicola Lacey, State Punishment: Political Principles and Community Values,

Routledge, London, 1988

Marcia Langton, Address to UNSW Symposium 2000 Mandatory Sentencing: Rights and

Wrongs, Sydney, 28 October 2000

Jeanette Lawrence and Ross Homel, “Sentencing in the Magistrates’ Courts: The

Magistrate as Professional Decision Maker” in Ivan Potas (ed), Sentencing: Problems

and Prospects, Proceedings of a Seminar held at Australian Institute of Criminology,

18-21 March 1986, Canberra, 1987

Donald Lay, “Rethinking the Guidelines: A Call for Cooperation” (1992) 101 Yale Law

Journal 1755

5 2 0

John Lea and Jock Young, What is to be Done About Law and Order? C ris is in the

Nineties, Pluto Press, London, 1993

Michael Leach, Geoffrey Stokes and Ian Ward (eds), The Rise and F a ll of One Nation,

University of Queensland Press, St Lucia, 2000

Cynthia Lee, “A New “Sliding Scale of Deference” Approach to Abuse of Discretion:

Appellate Review of District Court Departures under the Federal Sentencing

Guidelines” (1997) 35(1) American Crim inal Law Review 1

Sharon Levrant et al, “Reconsidering Restorative Justice: The Corruption of

Benevolence Revisited?” (1999) 45 Crime and Delinquency 3

Neil Lofgren, “Aboriginal Community Participation in Sentencing” (1997) 21 Criminal

Law Journal 111

Katie Long, “Community Input at Sentencing: Victim’s Right or Victim’s Revenge?”

(1995) 75 Boston University Law Review 187

Austin Lovegrove, “An Empirical Study of Sentencing Disparity Among Judges in an

Australian Criminal Court” (1984) 33 International Review of Applied Psychology 161

Austin Lovegrove, The Framework of Judicial Sentencing: A Study in Legal Decision

Making, Cambridge University Press, Melbourne, 1997

Austin Lovegrove, Judicial Decision Making, Sentencing Policy, and Numerical

Guidance, Springer-Verlag, New York, 1989

Austin Lovegrove, “Judicial Sentencing Policy, Criminological Expertise and Public

Opinion” (1998) 31 The Australian and New Zealand Journal of Criminology 287

5 2 1

Austin Lovegrove, “Sentencing Guidance and Judicial Training in Australia” in Colin

Munro and Martin Wasik (eds), Sentencing, Judicial Discretion and Tra in ing, Sweet

and Maxwell, London, 1992

Austin Lovegrove, “Sentencing the Multiple Offender: Towards Detailed Sentencing

Statistics for Armed Robbers” (1998) 31 The Australian and New Zealand Journal of

Criminology

Austin Lovegrove, “Structuring the Judicial Sentencing Discretion: Some Empirical

Considerations on Reforms” in Andros Kapardis (ed), Sentencing: Some Key Issues, La

Trobe University Press (special issue of Law in Context vol 13(2) 1995), Melbourne,

1995

Gary Lowenthal, “Mandatory Sentencing Laws: Undermining the Effectiveness of

Determinate Sentencing Reform” (1993) 81 California Law Review 61

Deborah Lupton, “Dangerous Places and the Unpredictable Stranger: Constructions of

Fear of Crime” (1999) 32 The Australian and New Zealand Journal o f Criminology 1

Deborah Lupton, “Part of Living in the Late Twentieth Century: Notions of Risk and

Fear in Relation to Crime” (2000) 33 The Australian and New Zealand Journal of

Criminology 21

George Mackaness, The Discovery and Exploration ofMoreton Bay and the Brisbane

R ive r (Part I I) , Review Publications Pty Ltd, Sydney, 1956 (reprinted 1979)

George Mackaness, Some Proposals fo r Establishing Colonies in the South Seas,

Review Publications Pty Ltd, Dubbo, 1976

Geraldine Mackenzie, Summary Offences, Law and Practice Queensland, Looseleaf,

LBC Information Services, Sydney, 1995

5 2 2

Louise Macrae, “Victim Offender Mediation in Queensland” (1994) 14 Socio-Legal

Bulletin 7

John Macrossan et al, Griffith, the Law and the Australian Constitution, Royal

Historical Society of Queensland, Brisbane, 1998

Mike Maguire, “The Needs and Rights of Victims of Crime” in Michael Tonry (ed),

Crime and Justice: A Review of Research, vol 14, The University of Chicago Press,

Chicago, 1991

Peter Mals and Geoffrey Grantham, “Queensland Boards a Sinking Ship - New

Dangerous Offenders Legislation” (1993) 18 Alternative Law Journal 17

Dianne Martin, “Punishing Female Offenders and Perpetuating Gender Stereotypes” in

Julian Roberts and David Cole (eds), Making Sense of Sentencing, University of

Toronto Press, Toronto, 1999

Ged Martin (ed), The Founding of Australia: The Argument About A ustra lia ’s Origins,

Hale and Iremonger, Sydney, 1978

P Martin, “Response to Michael Tonry” (1989) 2 Federal Sentencing Reporter 158

Robert Martinson, “New Findings, New Views: A Note of Caution Regarding

Sentencing Reform” (1979) 7 Hofstra Law Review 243

Robert Martinson, “What Works? Questions and Answers About Prison Reform”

(1974) 35 The Public Interest 22

Thomas Marvell, “Sentencing Guidelines and Prison Population Growth” (1995) 85

Journal of Criminal Law and Criminology 696

523

Brett Mason, “From Shamans to Shaming: A History of Criminological Thought” in

Kayleen Hazlehurst (ed), Crime and Justice: An Australian Textbook in Criminology,

LBC Information Services, Sydney, 1996

Brett Mason, “A Not So Rational Philosophy: A Critique of the Penalties and Sentences

Act 1992 (Qld)” (1995) Queensland University of Technology Law Journal Cl

T Mathiesen, “General Prevention as Communication” in R A Duff and David Garland

(eds), A Reader on Punishment, Oxford University Press, Oxford, 1994

Paul Maxim, “An Ecological Analysis of Crime in Early Victorian England” (1989) 28

The Howard Journal 37

Gabrielle Maxwell and Allison Morris, “Putting Restorative Justice into Practice for

Adult Offenders” (2001) 40 The Howard Journal 55

Peter McCormick and Ian Greene, Judges and Judging, James Lorimer and Company,

Toronto, 1990

Candace McCoy, “Sentencing (and) the Underclass” (1997) 31(3) Law and Society

Review 589

F W M McElrea, “Restorative Justice - The New Zealand Youth Court: A Model for

Development in Other Courts?” (1994) 4 Journal of Judicial Administration 33

John McKenzie, “Recognition of Aboriginal Customary Law” (1993) Law Society

Journal 37

Kaye McLaren, Reducing Reoffending: What Works Now, Penal Division, Department

of Justice, Wellington, NZ, 1992

James McLaughlin, “Reducing Unjustified Sentencing Disparity” (1998) 107 Yale Law

Journal 2345

5 2 4

M McLeod, “An Examination of the Victim’s Role at Sentencing” (1987) 71 Judicature

162

Frar.k McLynn, Crime and Punishment in Eighteenth-Century England, Routledge,

London, 1989

Justice Margaret McMurdo, Why the Sentencing Discretion Must be Maintained, Aspen,

Colorado, 3 January 2000

B H McPherson, The Supreme Court of Queensland 1859-1960: H isto ry Jurisdiction

Procedure, Butterworths, Sydney, 1989

Evelyn McWilliams, “Sentencing Guidelines: Who Should be the Arbiter, The Judiciary

or Parliament?” (1998) 36 Law Society Journal 48

Daniel Mears, “The Sociology of Sentencing: Reconceptualizing Decisionmaking

Processes and Outcomes” (1998) 32 Law and Society Review 667

Chris Merritt, “The Courts and the Media: What Reforms are Needed and Why?”

(1999) 1 U T S Law Review 42

David Miers, “The Responsibilities and Rights of Victims of Crime” (1992) 55 Modem

Law Review 482

Richard Miles, “Matters of the Heart and the Heart of the Matter: The Constitutional

Referendum in Australian Politics” (2000) 25 Alternative Law Journal 53

J L Miller and Andy Anderson, “Updating the Deterrence Doctrine” (1986) 77 Journal

of Criminal Law and Criminology 418

Shereen Miller and Mark Shacter, “From Restorative Justice to Restorative

Governance” (2000) 42 Canadian Journal of Criminology 405

5 2 5

Barry Mitchell, “Further Evidence of the Relationship Between Legal and Public

Opinion on the Law of Homicide” (2000) Criminal Law Review 814

B Mitchell, “Public Perceptions of Homicide and Criminal Justice” (1998) 38 The

B rit ish Journal of Criminology 453

Dianne Mitchell, “Victim Impact Statements: A Brief Examination of the Their

Implementation in Victoria” (1996) 8 Current Issues in Crim inal Justice 163

Carlisle Moody and Thomas Marvell, “The Uncertain Timing of Innovations in Times

Series: Minnesota Sentencing Guidelines and Jail Sentences - a Comment” (1996) 34

Criminology 257

Neil Morgan, “Accountability, Transparency and Justice: Do We Need a Sentencing

Matrix?” (1999) 28 Western Australia Law Review 259

Neil Morgan, “Business as Usual or a ‘New Utopia’ ? Non-Custodial Sentences Under

Western Australia’s New Sentencing Laws” (1996) 26 Western Australian Law Review

364

Neil Morgan, “Capturing Crims or Capturing Votes? The Aims and Effects of

Mandatories” (1999) 22 University of New South Wales Law Journal 267

Neil Morgan, “Mandatory Sentences in Australia: Where Have We Been and Where

Are We Going?” (2000) 24 Criminal Law Journal 164

Neil Morgan and Belinda Murray, “What’ s in a Name? Guideline Judgments in

Australia” (1999) 23 Criminal Law Journal 90

Rod Morgan and Chris Clarkson, “The Politics of Sentencing Reform” in Chris

Clarkson and Rod Morgan (eds), The Po litics of Sentencing Reform, Clarendon Press,

Oxford, 1995

5 2 6

Allison Morris and Loraine Gelsthorpe, “Something Old, Something Borrowed,

Something Blue, but Something New? A Comment on the Prospects for Restorative

Justice under the Crimes and Disorder Act 1998” (2000) Criminal Law Review 18

Norval Morris, “Desert as a Limiting Principle” in Andrew von Hirsch and Andrew

Ashworth (eds), Principled Sentencing: Readings on Theory and Po licy, 2nd ed, Hart

Publishing, Oxford, 1998

Norval Morris and Michael Tonry, Between Prison and Probation: Intermediate

Sanctions in a Rational Sentencing System, Oxford University Press, New York, 1990

Satyanshu Mukherjee, “Crime Trends: A National Perspective” in Duncan Chappell and

Paul Wilson (eds), Crime and the Criminal Justice System in Austra lia: 2000 and

Beyond, Butterworths, Sydney, 2000

His Honour Judge Paul Mullaly, Victorian Sentencing Manual, 2nd ed, Law Crest,

Ormond, Vic, 1999

Uene Nagel, “Structuring Sentencing Discretion: The New Federal Sentencing

Guidelines” 80 Journal of Crim inal Law and Criminology 883

Ilene Nagel and Stephen Schulhofer, “A Tale of Three Cities: An Empirical Study of

Charging and Bargaining Practices Under the Federal Sentencing Guidelines” (1992) 66

University of Southern California 501

Daniel Nagin, “Criminal Deterrence Research at the Outset of the Twenty-First

Century” in Michael Tonry (ed), Crime and Justice: A Review of Research, vol 23, The

University of Chicago Press, Chicago, 1998

J F Nagle, Collins, the Courts and the Colonies, University of New South Wales Press,

Sydney, 1996

5 2 7

David Neal, The Rule of Law in a Penal Colony: Law and Power in Ea rly New South

Wales, Cambridge University Press, Melbourne, 1991

Brendan Nelson, Address on Government Perspectives to UN SW Symposium 2000

Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000

Garth Nettheim, “ ‘The Consent of the Natives’ : Mabo and Indigenous Political Rights”

(1993) 15 Sydney Law Review 223

New South Wales Law Reform Commission, Sentencing (Report No 79), Sydney, 1996

New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders (Report

No 96), Law Reform Commission Publications, Sydney, 2000

New South Wales Law Reform Commission, Sentencing: Discussion Paper No 33,

New South Wales Law Reform Commission, Sydney, 1996

John Newton, Cases and Materials on Sentencing in Queensland, Australian Institute of

Criminology, Canberra, 1979

John Nicholson, “The Sentencing of Aboriginal Offenders” (1999) 23 Criminal Law

Journal 85

Raymond Nimmer, The Nature of System Change: Reform Impact in the Criminal

Courts, American Bar Foundation, Chicago, 1978

Northern Territory Government, What it is A ll About, Northern Territory Government,

Darwin, June 2000

Trevor Nyman, “NSW No Safer for its Penal State” (1996) Law Society Journal 61

Stephen Odgers, “Criminal Cases in the High Court of Australia” (1999) 23 Criminal

Law Journal 376

5 2 8

Charles Ogletree, “The Death of Discretion? Reflections on the Federal Sentencing

Guidelines” (1988) 101 Harvard Law Review 1938

Wilfred Oldham, B rita in 's Convicts to the Colonies, Library of Australian History,

Sydney, 1990

Pat O ’Malley, “Criminologies of Catastrophe? Understanding Criminal Justice on the

Edge of the New Millennium” (2000) 33 The Australian and New Zealand Journal of

Criminology 153

Pat O’Malley and Adam Sutton (eds), Crime Prevention in Australia: Issues in Policy

and Research, The Federation Press, Sydney, 1997

Robin O ’Regan, New Essays on the Australian Crim inal Codes, The Law Book Co,

Sydney, 1988

Gerard Palk, Gail Pollard and Lyn Johnson, Community Conferencing in Queensland,

Juvenile Justice Program, Department of Families, Youth and Community Care

(available on-line at http://www.families.qld.gov.au/juvenile/com_conf_content.html),

Brisbane, 1998

C L Pannam, “The Radical Chief Justice” (1964) 37 Australian Law Journal 275

Dale Parent, “What Did the United States Sentencing Commission Miss?” (1992) 101

Yale Law Journal 1773

Jim Parke and Brett Mason, “The Queen of Hearts in Queensland: A Critique of Part 10

of the Penalties and Sentences Act 1992 (Qld)” (1995) 19 Criminal Law Journal 312

Stephen Parker, Courts and the Public, Australian Institute of Judicial Administration

Incorporated, Carlton South, Vic, 1998

529

Haig Patapan, Judging Democracy: The New Po litics o f the High Court of Australia,

Cambridge University Press, Melbourne, 2000

Raymond Paternoster, “Examining Three-Wave Deterrence Models: A Question of

Temporal Order and Specification” (1988) 79 Journal o f Criminal Law and

Criminology 135

Raymond Paternoster et al, “Perceived Risk and Deterrence: Methodological Artifacts

in Perceptual Deterrence Research” 73 Journal of Criminal Law and Criminology 1238

Raymond Paternoster et al, “Estimating Perpetual Stability and Deterrent Effects: The

Role of Perceived Legal Punishment in the Inhibition of Criminal Involvement” (1983)

74 The Journal of Criminal Law and Criminology 270

Joan Petersilia (ed), Community Corrections: Probation, Parole, and Intermediate

Sanctions, Oxford University Press, New York, 1998

Joan Petersilia, “Probation in the United States” in Michael Tonry (ed), Crime and

Justice: A Review of Research, vol 22, The University of Chicago Press, Chicago, 1997

Joan Petersilia and Susan Turner, “Intensive Probation and Parole” in Michael Tonry

(ed), Crime and Justice: A Review of Research, vol 17, The University of Chicago

Press, Chicago, 1993

Constance Campbell Petrie, Tom Petrie’s Reminiscences of Ea rly Queensland,

University of Queensland Press, St Lucia, 1992 (first published 1904)

David Philips and Susanne Davies (eds), A Nation of Rogues? Crime, Law and

Punishment in Colonial Australia, Melbourne University Press, Melbourne, 1994

Susan Philips, Ideology in the Language of Judges: How Judges Practice Law, Politics,

and Courtroom Control, Oxford University Press, New York, 1998

530

Amy Phillips, “Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact

Statements in Capital Sentencing” (1997) 35 American Criminal Law Review 93

Llad Phillips and Harold Votey, “An Economic Analysis of the Deterrent Effect of Law

Enforcement on Criminal Activity” (1972) 63 The Journal of Crim inal Law

Criminology and Police Science 330

Charles Pollard, “Victims and the Criminal Justice System: A New Vision” (2000)

Crim inal Law Review 5

Richard Posner, “Optimal Sanctions: Any Upper Limits” in Andrew von Hirsch and

Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd

ed, Hart Publishing, Oxford, 1998

Ivan Potas, “Guidelines for the Sentencing of Armed Robbers” (1999) 11 Judicial

Officers Bulletin 28

Ivan Potas, “The Sentencing Act 1989: Impact and Review” (1992) 3 Current Issues in

Criminal Justice 318

Ivan Potas, Sentencing Drug Offenders in New South Wales, Australian Institute of

Criminology, Canberra, 1983

Ivan Potas, Sentencing fo r Break, Enter and Steal in New South Wales, Australian

Institute of Criminology, Canberra, 1985

Ivan Potas, Sentencing Robbers in New South Wales: Principles, Policy and Practice,

Australian Institute of Criminology, Canberra, 1990

Carol La Prairie, “Altering Course: New Directions in Criminal Justice; Sentencing

Circles and Family Group Conferences” (1995) 28 The Australian and New Zealand

Journal o f Criminology 78

531

Carol La Prairie, “Sentencing Aboriginal Offenders: Some Critical Issues” in Julian

Roberts and David Cole (eds), Making Sense of Sentencing, University of Toronto

Press, Toronto, 1999

Carol La Prairie, “Sentencing Circles and Family Group Conferences: Response to

Jenny Bargen” (1996) 29 The Australian and New Zealand Journal of Criminology 74

Carol La Prairie, “Some Reflections on New Criminal Justice Policies in Canada:

Restorative Justice, Alternative Measures and Conditional Sentences” (1999) 32 The

Australian and New Zealand Journal o f Criminology 139

John Pratt, “Civilization and Punishment” (2000) 33 The Australian and New Zealand

Journal o f Criminology 183

John Pratt, “Emotive and Ostentatious Punishment” (2000) 2 Punishment and Society

417

John Pratt, “Punishment and the Lessons from History” (1992) 25 The Australian and

New Zealand Journal o f Criminology 97

John Pratt, “Punishment, History and Empire” (1991) 24 The Australian and New

Zealand Journal of Criminology 118

Sarah Pritchard, Address on International Perspectives to UN SW Symposium 2000

Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000

Michael Proeve, David Smith and Diane Nibio, “Mitigation Without Definition:

Remorse in the Criminal Justice System” (1999) 32 The Australian and New Zealand

Journal o f Criminology 16

Queensland Office of the Australian Bureau of Statistics, Queensland Year Book 1998,

Australian Bureau of Statistics, Brisbane, 1998

5 3 2

Queensland, Parliamentary Debates, Legislative Assembly, 5 November 1992

Queensland, Parliamentary Debates, Legislative Assembly, 19 March 1997

Queensland, Parliamentary Debates, Legislative Assembly, 13 November 1992

Aldo Raineri, “Re-integrating the Victim into the Sentencing Process: Victim Impact

Statements as an Element of Offender Disposition” (1995) 11 Q U T Law Journal 79

Lord Reid, “The Judge as Law Maker” (1972) 12 Journal o f the Society of Public

Teachers of Law (New Series) 22

Jennifer Reinganum, “Sentencing Guidelines, Judicial Discretion, and Plea Bargaining”

(2000) 31(1) Rand Journal of Economics 62

Kevin Reitz, “Michael Tonry and the Structure of Sentencing Laws” (1996) 86 Journal

of Criminal Law and Criminology 1585

Report of a Commission of Inquiry Pursuant to Orders in Council, Commission of

Inquiry into Possible Illegal Activities and Associated Police Misconduct, Queensland

Government, Brisbane, 1989

Sue Rex, “Applying Desert Principles to Community Sentences: Lessons from Two

Criminal Justice Acts” (1998) Criminal Law Review 381

Sue Rex, “A New Form of Rehabilitation” in Andrew von Hirsch and Andrew

Ashworth (eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart

Publishing, Oxford, 1998

Henry Reynolds, Dispossession: Black Australians and White Invaders, 2nd ed, Allen &

Unwin. St Leonards, 1989

5 3 3

Henry Reynolds, Frontier: Aborigines, Settler and Land, Allen & Unwin, St Leonards,

1996

Henry Reynolds, The Law of the Land, Penguin, Ringwood, 1992

Henry Reynolds, The Other Side of the Frontie r: Aboriginal Resistance to the European

Invasion of Australia, Penguin Books, Ringwood, 1990

William Rhodes, “Federal Criminal Sentencing: Some Measurement Issues with

Application to Pre-Guideline Sentencing Disparity” (1991) 81 Journal of Criminal Law

and Criminology 1002

Kent Roach, “Changing Punishment at the Turn of the Century: Restorative Justice on

the Rise” (2000) 42 Canadian Journal of Criminology 249

Julian Roberts, “American Attitudes About Punishment: Myth and Reality” in Joan

Petersilia (ed), Community Corrections: Probation, Parole and Intermediate Sanction,

Oxford University Press, New York, 1998

Julian Roberts, “Public Opinion, Crime, and Criminal Justice” in Michael Tonry (ed),

Crime and Justice: A Review of Research, vol 16, The University of Chicago Press,

Chicago, 1992

Julian Roberts, “The Role of the Criminal Record in the Sentencing Process” in Michael

Tonry (ed), Crime and Justice: A Review of Research, vol 22, The University of

Chicago Press, Chicago, 1997

Julian Roberts, “Sentencing Research in Canada” (1999) 41 Canadian Journal of

Criminology 225

Julian Roberts and Andy Birkenmayer, “Sentencing in Canada: Recent Statistical

Trends” (1997) 39 Canadian Journal of Criminology 459

5 3 4

Julian Roberts and David Cole (eds), Making Sense of Sentencing, University of

Toronto Press, Toronto, 1999

Julian Roberts and Andrew von Hirsch, “Legislating the Purpose and Principles of

Sentencing” in Julian Roberts and David Cole (eds), Making Sense of Sentencing,

University of Toronto Press, Toronto, 1999

Julian Roberts and Andrew von Hirsch, “Statutory Sentencing Reform: The Purpose and

Principles of Sentencing” (1995) 37 Criminal Law Quarterly 220

John Robertson and Geraldine Mackenzie, Queensland Sentencing Manual, LBC

Information Services, Sydney, 1998

Paul Robinson, “The Federal Sentencing Guidelines: Ten Years Later: An Introduction

and Comments” (1997) 91 Northwestern University Law Review 1231

Declan Roche, Mandatory Sentencing - Trends and Issues in Crim inal Justice,

Australian Institute of Criminology, Canberra, 1999

Christopher Roper, Proposed Australian Judicial College, Discussion paper prepared

for the Australian Institute of Judicial Administration and the Australian Judicial

Conference, September 1999

Michael Rozenes, “Fundamental Flaws in Sentencing Law” (1992) Australian Law

News 12

Wojciech Sadurski, “Distributive Justice and the Theory of Punishment” (1985) 5

Oxford Journal of Legal Studies 47

Dushen Salecich, Brisbane, Ipswich or Cleveland: The Capital Po rt Question at

Moreton Bay 1842-59, Brisbane History Group, Brisbane, 1987

535

Peter Sallman, “Judicial Education: Some Information and Observations” (1988) 62

Australian Law Journal 981

Peter Sallmann, “In Search of the Holy Grail of Sentencing: An Overview of Some

Recent Trends and Developments” (1991) Journal o f Judicial Administration 124

William Samuel and Elizabeth Moulds, “The Effect of Crime Severity on Perceptions of

Fair Punishment: A California Case Study” (1986) 77 Journal o f Criminal Law and

Criminology 931

Wayne Sanderson, “Meeting Mother’s Killer” , The Australian Magazine, 1996, 24-25

August 1996

G F K Santow, “The High Court and Mandatory Sentencing” , Sydney Morning Herald,

Sydney, 28 March 2000

G F K Santow, “Mandatory Sentencing: A Matter for the High Court” (2000) 74

Australian Law Journal 298

Rick Sarre, “Beyond ‘What Works?’ A 25-Year Jubilee Retrospective of Robert

Martinson’s Famous Article” (2001) 34 The Australian and New Zealand Journal of

Criminology 38

Kay Saunders, “Sir Samuel Griffith and the Writing of the Constitution” in John

Macrossan, Kay Saunders, Sandra Bems, Colin Sheehan and Katie McConnel (eds),

Griffith, the Law, and the Australian Constitution, Royal Historical Society of

Queensland, Brisbane, 1998

Mike Seccombe, “Biscuit Thief Jailed as MPs Quibble” , Sydney Morning Herald,

Sydney, 17 February 2000

Lee Sechrest, Susan White and Elizabeth Brown (eds), The Rehabilitation of Criminal

Offenders: Problems and Prospects, National Academy of Sciences, Washington, 1979

5 3 6

M J Shanahan, M P Irwin and P E Smith, Carter’s Criminal Law of Queensland, 12th

ed, Butterworths, Sydney, 2001

J A Sharpe, Judicial Punishment in England, Faber and Faber Limited, London, 1990

Steven Shavell, “Criminal Law and the Optimal Use of Nonmonetary Sanctions as a

Deterrent” (1985) 85 Columbia Law Review 1232

John Sheldon and Kirsty Gowans, D o lla rs Without Sense: A Review of the Northern

Te rrito ry ’s Mandatory Sentencing Laws, North Australian Aboriginal Legal Aid Service

(available on-line at http://ms.dcls.org.au/Dollars_Sense.htm), Darwin, downloaded

August 2000

Stephen Shute, “The Place of Public Opinion in Sentencing Law” (1998) Criminal Law

Review 465

Richard Singer, Just Deserts: Sentencing Based on Equality and Desert, Ballinger

Publishing Company, Cambridge, Massachusetts, 1979

Jeff Smith, “Clothing the Emperor: Towards a Jurisprudence of Sentencing” (1997) 30

The Australian and New Zealand Journal of Criminology 168

NSW Law Society, “Law Society Response to ALRC Sentencing Reform Proposals”

(1987) Law Society Journal 11

Keith Soothill and Chris Grover, “The Public Portrayal of Rape Sentencing: What the

Public Learns of Rape Sentencing from Newspapers” (1998) Criminal Law Review 455

Donna Spears, “Structuring Discretion: Sentencing in the Jurisic Age” (1999) 22 UNSW

Law Journal 295

5 3 7

William Spelman, “What Recent Studies Do (and Don’t) Tell Us About Imprisonment

and Crime” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 27,

The University of Chicago Press, Chicago, 2000

Pieter Spierenburg, The Priso n Experience: D iscip linary Institutions and their Inmates

in Ea rly Modem Europe, Rutgers University Press, New Brunswick, 1991

Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of

Repression: From a Preindustria l Metropolis to the European Experience, Cambridge

University Press, Cambridge, 1984

The Honourable JJ Spigelman, Opening Address to the UN SW Symposium 2000

Mandatory Sentencing - Rights and Wrongs, Sydney, 28 October 2000

The Hon JJ Spigelman, “Sentencing Guideline Judgments” (1999) 73 Australian Law

Journal 876 (address to National Conference of District and County Court judges on 24

June 1999)

Rebecca Spiro, “Federal Sentencing Guidelines and the Rehnquist Court: Theories of

Statutory Interpretation” (2000) 37 American Criminal Review 103

Jane Sprott and Anthony Doob, “Fear, Victimization, and Attitudes to Sentencing, the

Courts, and the Police” (1997) 39 Canadian Journal o f Criminology 275

Jeffrey Standen, “An Economic Perspective of Federal Criminal Law Reform” (1998) 2

Buffalo Criminal Law Review 249

Stephen Stanley and Mary Baginsky, Alternatives to P riso n : An Examination of Non­

custodial Sentencing of Offenders, Peter Owen, London, 1984

Lisa Stansky, “Breaking Up Prison Gridlock” (1996) 82 ABA Journal 70

5 3 8

Darrell Steffensmeier, “Women and Men Policymakers: Does the Judge’s Gender

Affect the Sentencing of Criminal Defendants?” (1999) 77 Social Forces 1163

Kate Stith and Jose Cabranes, Fear of Judging: Sentencing Guidelines in the Federal

Courts, University of Chicago Press, Chicago, 1998

Heather Strang, “The Future of Restorative Justice” in Duncan Chappell and Paul

Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond,

Butterworths, Sydney, 2000

Hon Brian Sully, “Trends in Guideline Judgments” (2001) 20 Australian Ba r Review

250

C J Sumner, “Victim Participation in the Criminal Justice System” (1987) 20 The

Australian and New Zealand Journal of Criminology 195

Supreme Court Queensland Chief Justice, Supreme Court o f Queensland Annual Report

1997-98, Supreme Court of Queensland, Brisbane, 1998

Deanell Reece Tacha, “Serving This Time: Examining the Federal Sentencing

Guidelines After a Decade of Experience” (1997) 62 M isso uri Law Review 471

David Tait, “The Invisible Sanction: Suspended Sentences in Victoria 1985-1991”

(1995) 28 The Australian and New Zealand Journal of Criminology 143

Taskforce on Women and the Criminal Code, Report of the Taskforce on Women and

the Criminal Code, Office of Women’s Policy, Government of Queensland, Brisbane,

1999

Lord Taylor, “Judges and Sentencing” (1993) 38 Journal of the Law Society of Scotland

129

5 39

Charles Thomas and Donna Bishop, “The Effect of Formal and Informal Sanctions on

Delinquency: A Longitudinal Comparison of Labeling and Deterrence Theories” (1984)

75 Journal o f Crim inal Law and Criminology 1222

D A Thomas, “Establishing a Factual Basis for Sentencing” (1970) Criminal Law

Review 80

D A Thomas, “Sentencing Reform: England and Wales” in Chris Clarkson and Rod

Morgan (eds), The Po litics of Sentencing Reform, Clarendon Press, Oxford, 1995

Justice J B Thomas, “Get Up O ff the Ground (A Commentary on Hon Kirby J’s

‘Judicial Stress - An Update’ )” (1997) 71 Australian Law Journal 785

Campbell Thomson, “Preventing Crime or ‘Warehousing’ the Underprivileged?

Mandatory Sentencing in the Northern Territory” (1999/2000) 4(26) Indigenous Law

Bulletin 4

Bill Thorpe, Colonial Queensland: Perspectives on a Fro ntie r Society, University of

Queensland Press, St Lucia, 1996

Matthew Thrower, “Victim Impact Statements: The Voice of Shattered Lives” (1996)

16 The Proctor 16

William Tilmouth, Address to UN SW Symposium 2000 Mandatory Sentencing - Rights

and Wrongs, Sydney, 28 October 2000

Michael Tonry, “Intermediate Sanctions in Sentencing Reform” (1995) 2 The University

of Chicago Law School Roundtable 391

Michael Tonry, “Judges and Sentencing Policy - The American Experience” in Colin

Munro and Martin Wasik (eds), Sentencing, Judicial Discretion and Training, Sweet

and Maxwell, London, 1992

540

Michael Tonry, “Mandatory Penalties” in Michael Tonry (ed), Crime and Justice: A

Review of Research, vol 16, The University of Chicago Press, Chicago, 1992

Michael Tonry, “Proportionality, Parsimony, and Interchangeability of Punishments” in

R A Duff and David Garland (eds), A Reader on Punishment, Oxford University Press,

Oxford, 1994

Michael Tonry, “Sentencing Commissions and Their Guidelines” in Michael Tonry

(ed), Crime and Justice: A Review of Research, vol 17, The University of Chicago

Press, Chicago, 1993

Michael Tonry, Sentencing Matters, Oxford University Press, New York, 1996

Michael Tonry, “Sentencing Reform Across National Boundaries” in Chris Clarkson

and Rod Morgan (eds), The Po litics of Sentencing Reform, Clarendon Press, Oxford,

1995

Michael Tonry, “The Success of Judge Franker s Sentencing Commission” (1993) 64

Colorado Law Review 713

Michael Tonry, “Why are US Incarceration Rates So High?” (1999) 45 Crime and

Delinquency 419

Michael Tonry and David Farrington (eds), Building a Safer Society: Strategic

Approaches to Crime Prevention (special issue o f Crime and Justice: A Review of

Research), vol 19, The University of Chicago Press, Chicago, 1995

Michael Tonry and Mary Lynch, “Intermediate Sanctions” in Michael Tonry (ed),

Crime and Justice: A Review of Research, 20, The University of Chicago Press,

Chicago, 1996

541

Michael Tonry and Joan Petersilia, “American Prisons at the Beginning of the Twenty-

First Century” in Michael Tonry (ed), Crime and Justice: A Review o f Research, vol 26,

The University of Chicago Press, Chicago, 1999

Michael Townsley, Ross Homel and Janet Chaseling, “Repeat Burglary Victimisation:

Spatial and Temporal Patterns” (2000) 22 The Australian and New Zealand Journal of

Criminology 37

Christopher Trotter, “Client Perceptions of Community Based Corrections” (1992) 3

Criminology Australia 18

Christopher Trotter, “Contamination Theory and Unpaid Community Work” (1995) 28

The Australian and New Zealand Journal o f Criminology 162

Christopher Trotter, “The Impact of Different Supervision Practices in Community

Corrections: Cause for Optimism” (1996) 29 The Australian and New Zealand Journal

of Criminology 29

William Tyler, “Aboriginal Criminology and the Postmodern Condition: From Anomie

to Anomaly” (1999) 32 The Australian and New Zealand Journal o f Criminology 209

United States Sentencing Commission, Guidelines Manual, United States Sentencing

Commission, Washington DC, November 1998

Antony Vass, Alternatives to Prison: Punishment, Custody and the Community, Sage

Publications, London, 1990

Richard van Dtilmen, Theatre of H o rro r: Crime and Punishment in Ea rly Modem

Germany, Polity Press, Cambridge, UK, 1990

Victorian Sentencing Committee, Sentencing: Report o f the Victorian Sentencing

Committee, Attorney-General’ s Department, Victoria, Melbourne, 1988

Andrew von Hirsch, Censure and Sanctions, Clarendon Press, Oxford, 1993

5 4 2

Andrew von Hirsch, “Constructing Guidelines for Sentencing: The Critical Choices for

the Minnesota Sentencing Guidelines Commission” (1985) 5 Hamline Law Review 164

Andrew von Hirsch, “Desert and Previous Convictions in Sentencing” (1981) 65

Minnesota Law Review 521

Andrew von Hirsch, Doing Justice: the Choice of Punishments, Northeastern University

Press (originally published: New York, Hill and Wang, 1976), Boston, 1986

Andrew von Hirsch, “The Ethics of Community Based Sanctions” (1990) 36 Crime and

Delinquency 162

Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled

Guidance?” (1989) 27 American Criminal Law Review 367

Andrew von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the

Sentencing of Criminals, Rutgers University Press, New Brunswick, 1987

Andrew von Hirsch, “Principles for Choosing Sanctions: Sweden’s Proposed

Sentencing Statute” (1987) 13 New England Journal on Criminal and C iv il

Confinement 171

Andrew von Hirsch, “Proportionality and Parsimony in American Sentencing

Guidelines: The Minnesota and Oregon Standards” in Chris Clarkson and Rod Morgan

(eds), The Po litics o f Sentencing Reform, Clarendon Press, Oxford, 1995

Andrew von Hirsch, “Proportionality in the Philosophy of Punishment” in Michael

Tonry (ed), Crime and Justice: A Review of Research, vol 16, The University of

Chicago Press, Chicago, 1992

Andrew von Hirsch, “Proportionality in the Philosophy of Punishment: From ‘Why

Punish?’ to ‘How Much?’“ (1990) 1 Criminal Law Forum 259

543

Andrew von Hirsch, “Proportionate Sentences: A Desert Perspective” in Andrew von

Hirsch and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and

Policy, 2nd ed, Hart Publishing, Oxford, 1998

Andrew von Hirsch, “Punishment to Fit the Criminal” (1988) 246 The Nation 901

Andrew von Hirsch, “Sentencing Guidelines and Penal Aims in Minnesota” (1994)

13(1) Criminal Justice Ethics 39

Andrew von Hirsch, “Sentencing Reform: Its Goals and Prospects” in Antony Duff,

Sandra Marshall, Rebecca Emerson Dobash and Russell Dobash (eds), Penal Theory

and Practice: Tradition and Innovation in Criminal Justice, Manchester University

Press, Manchester, 1994

Andrew von Hirsch, “Utilitarian Sentencing Resuscitated: The American Bar

Association’s Second Report on Criminal Sentencing” (1981) 33 Rutgers Law Review

772

Andrew von Hirsch and Andrew Ashworth, “Law and Order” in Andrew von Hirsch

and Andrew Ashworth (eds), Principled Sentencing: Readings on Theory and Policy,

2nd ed, Hart Publishing, Oxford, 1998

Andrew von Hirsch and Andrew Ashworth, Principled Sentencing: Readings on Theory

and Punishment, 2nd ed, Hart Publishing, Oxford, 1998

Andrew von Hirsch et al, Crim inal Deterrence and Sentence Severity: An Analysis of

Recent Research, Hart Publishing, Oxford, 1999

Andrew von Hirsch and Nils Jareborg, “The Swedish Sentencing Law” in Andrew von

Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart Publishing,

Oxford, 1998

5 4 4

Andrew von Hirsch and Lisa Maher, “Should Penal Rehabilitationism Be Revived?” in

Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing, 2nd ed, Hart

Publishing, Oxford, 1998

Andrew von Hirsch, Martin Wasik and Judith Greene, “Punishments in the Community

and the Principles of Desert” (1989) 20 (3) Rutgers Law Journal 595

Michael Vitiello, “Three Strikes: Can We Return to Rationality?” (1997) 87 Journal of

Criminal Law and Criminology 395

Patricia Wald, “Some Real-Life Observations about Judging” (1992) 26 Indiana Law

Review 173

Joel Waldfogel, “Does Inter-judge Disparity Justify Empirically Based Sentencing

Guidelines?” (1998) 18 International Review of Law and Economics 293

John Walker, “Loosening the Administrative Handcuffs: Discretion and Responsibility

Under the Guidelines” (1993) 59 Brooklyn Law Review 551

John Walker, Mark Collins and Paul Wilson, “How the Public Sees Sentencing: An

Australian Survey” in Nigel Walker and Mike Hough (eds), Public Attitudes to

Sentencing: Surveys from Five Countries, Gower Publishing Company Limited,

Aldershot, UK, 1988

Nigel Walker, “Desert: Some Doubts” in Andrew von Hirsch and Andrew Ashworth

(eds), Principled Sentencing: Readings on Theory and Policy, 2nd ed, Hart Publishing,

Oxford, 1998

Nigel Walker, Punishment, Danger and Stigma: The M orality o f Crim inal Justice,

Blackwell, Oxford, 1980

Nigel Walker, Sentencing in a Rational Society, Penguin Books Ltd, Harmondsworth,

1969

5 45

Nigel Walker, Why Punish?, Oxford University Press, Oxford, 1991

Nigel Walker and Mike Hough, “Introduction: Developments in Methods and

Perspectives” in Nigel Walker and Mike Hough (eds), Public Attitudes to Sentencing:

Surveys from Five Countries, Gower Publishing Company Limited, Aldershot, UK,

1988

Nigel Walker and Mike Hough (eds), Public Attitudes to Sentencing: Surveys from Five

Countries, Gower Publishing Company Limited, Aldershot, UK, 1988

Nigel Walker and Nicola Padfield, Sentencing Theory, Law and Practice, 2nd ed,

Butterworths, London, 1996

Timothy Walker, “Starke on Sentencing” (1987) Law Institute Journal 278

Kathryn Walton, “The Federal Sentencing Guidelines: Miracle Cure for Sentencing

Disparity (Caution: Apply Only as Directed)” (1991) 79 Kentucky Law Journal 385

Kate Warner, “Juveniles in the Criminal Justice System” in George Zdenkowski, Chris

Ronalds and Mark Richardson (eds), The Criminal Injustice System Volume Two, Pluto

Press, Leichhardt, NSW, 1987

Kate Warner, “Purposes of Sentencing” in Criminal Sentencing, The Laws of Australia,

LBC Information Services, Sydney, Vol 12.1

Kate Warner, Sentencing in Tasmania, The Federation Press, Leichhardt, NSW, 1991

Kate Warner, “Sentencing Review 1997” (1998) 22 Criminal Law Journal 282

Kate Warner, “Sentencing Review 1998” (1999) 23 Criminal Law Journal 364

Kate Warner, “Sentencing Review 1999” (1999) 24 Criminal Law Journal 355

5 4 6

Martin Wasik, “Reparation: Sentencing and the Victim” (1999) Criminal Law Review

470

Martin Wasik and Andrew von Hirsch, “Section 29 Revised: Previous Convictions in

Sentencing” (1994) Criminal Law Review 409

Martin Wasik and Ken Pease (eds), Sentencing Reform: Guidance or Guidelines?,

Manchester University Press, Manchester, 1987

A Watson, “Some Psychological Aspects of the Trial Judge’ s Decision-Making” (1988)

39 Mercer Law Review 937

Rob Watts, “John Braithwaite and Crime Shame and Reintegration: Some Reflections

on Theory and Criminology” (1996) 29 The Australian and New Zealand Journal of

Criminology 121

Don Weatherbum, “Appellate Review, Judicial Discretion, and the Determination of

Minimum Periods” (1985) 18 The Australian and New Zealand Journal o f Criminology

272

Don Weatherbum, Sentence Disparity and its Impact on the N SW D istric t Criminal

Court, New South Wales Bureau of Crime Statistics and Research, Sydney, 1994

Don Weatherbum, “Sentencing Principles and Sentencing Choice” (1987) 11 Criminal

Law Journal 212

Don Weatherbum and Bronwyn Lind, “Sentence Disparity, Judge Shopping and Trial

Court Delay” (1996) 29 The Australian and New Zealand Journal of Criminology 147

Ian Weinstein, “The Discontinuous Tradition of Sentencing Discretion: Koon’s Failure

to Recognise the Reshaping of Judicial Discretion Under the Guidelines” (1999) 79

Boston University Law Review 493

5 4 7

David Weisburd, Elin Waring and Ellen Chayet, “Specific Deterrence in a Sample of

Offenders Convicted of White-Collar Crimes” (1995) 33 Criminology 587

The Honourable Dean Wells, Interview with the author, Parliament House, Brisbane,

Queensland, 12 September 1996

Andrew West, “The Relevance of an Apology in the Sentencing Process” (1997) 18 The

Queensland Lawyer 80

Stanton Wheeler, “Review Essay/Sentencing Matters” (1997) 16(2) Crim inal Justice

Ethics 46

Rob White and Fiona Haines, Crime and Criminology: An Introduction, 2nd ed, Oxford

University Press, Melbourne, 2000

Thomas Whiteside, “The Federal Sentencing Guidelines: Ten Years Later: The Reality

of Federal Sentencing: Beyond the Criticism” (1997) 91 Northwestern University Law

Review 1574

Ray Whitmore, “The First Brisbane Steamship Service 1841-45” in Brisbane History

Group Papers No 6 (ed), People Places Pageantry, Brisbane History Group, Brisbane,

1987

Tamasak Wicharaya, Simple Theory, Hard Reality: The Impact o f Sentencing Reforms

on Courts, P riso ns and Crime, State University of New York Press, Albany, 1995

Leslie Wilkins, “Sentencing Guidelines to Reduce Disparity” (1980) Criminal Law

Review 201

George Williams, “Where to Now?” (1999) 24 Alternative Law Journal 299

5 4 8

Hon Daryl Williams, “The Courts and the Media: What Reforms are Needed and

Why?” (1999) 1 The U T S Law Review 13

Paul Wilson, Black Death, White Hands, Allen & Unwin, Sydney, 1985

Paul Wilson (ed), Trends and Issues in Crime and Criminal Justice: No 2 How the

Public Sees Crime: An Australian Survey, 3, Australian Institute of Criminology,

Canberra, 1990

Peter Wood and Harold Grasmick, “Toward the Development of Punishment

Equivalencies: Male and Female Inmates Rate the Severity of Alternative Sanctions

Compared to Prison” (1999) 16 Justice Quarterly 19

R T Wright and S H Decker, Burg lars on the Job: Streetlife and Residential Break-ins,

Northeastern University Press, Boston, 1994

Eric Wynne, A T S I Perspectives, UN SW 2000 Symposium Mandatory Sentencing: Rights

and Wrongs, Sydney, 28 October 2000

Stanley Yeo, “Native Criminal Jurisdiction After Mabo” (1994) 6 Current Issues in

Criminal Justice 9

Mr Justice P W Young, “Guideline Judgments in Criminal Appeals” (1999) 73

Australian Law Journal 13

George Zdenkowski, “Customary Punishment and Pragmatism: R v Wilson Jagamara

Walker” (1994) 68 Aboriginal Law Bulletin 26

George Zdenkowski, “Guiding Sentencing Discretion: The Approach of the Australian

Law Reform Commission” in Proceedings of the Institute of Criminology No 78

Sentencing, University of Sydney Faculty of Law, Sydney, 1988

5 4 9

George Zdenkowski, “Judging the Judgments” , Sydney Morning Herald, Sydney, 15

October 1998

George Zdenkowski, “Limiting Sentencing Discretion: Has There Been a Paradigm

Shift?” (2000) 12 Current Issues in Crim inal Justice 58

George Zdenkowski, “Mandatory Imprisonment of Property Offenders in the Northern

Territory” (1999) 22 UNSW Law Journal 302

George Zdenkowski, “New Challenge to NT Mandatory Sentencing: Bob Brown’s

Abolition of Compulsory Imprisonment Bill 1998” (1999) 4(18) Indigenous Law

Bulletin 16

George Zdenkowski, “ Sentencing Reform in NSW - An Opportunity Missed” (1990) 5

Campaign fo r Crim inal Justice 4

George Zdenkowski, “ Sentencing Trends: Past, Present and Prospective” in Duncan

Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia:

2000 and Beyond, Butterworths, Sydney, 2000

George Zdenkowski and David Brown, The P riso n Struggle: Changing A ustra lia ’s

Penal System, Penguin Books, Ringwood, Vic, 1982

H Zehr, Changing Lenses: A New Focus fo r Criminal Justice, Herald Press, Scottdale,

Pennsylvania, 1990

Franklin Zimring and Gordon Hawkins, Deterrence: The Legal Threat in Crime

Control, The University of Chicago Press, Chicago, 1973

Franklin Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the

Restraint of Crime, Oxford University Press, New York, 1995