The VictorianSentencing Advisory

Council

Engaging the Community

Background: Pathways to Justice Report (2002) – 2002 Freiberg Sentencing Review

Terms of reference included:

“Whether any mechanism could be adopted to incorporate community views into the sentencing process more adequately”

Found strong reasons for ongoing confidence in the structure of Victoria’s sentencing system, but recommended improvements to:

Provide a structure to foster on-going and informed community participation in the further development of sentencing

The Sentencing (Amendment) Act 2003 established the Sentencing Advisory Council as an independent government funded statutory authority: established on 1 July 2004 (ss 108A – 108P)

The Council

The Sentencing Advisory Council bridges the

gap between the community, the courts and

government by informing, advising and

educating on sentencing issues.

Statutory terms of reference

Broad sentencing-related functions• Advise Court of Appeal on guideline judgments [s 199

PSA Qld]

• Provide [statistical] information (including information on current sentencing practices)

• Conduct research and disseminate information [s 200(1)

(c)(d) PSA] • Gauge public opinion [s 200(1)(e) PSA]

• Consult broadly [s 200(2) PSA]

• Advise the Attorney-General [s 200(1)(a) PSA]

Who is on the Council?

• 12 member Council supported by Secretariat• Members represent a range of perspectives that

will ensure robust debate on sentencing issues, based on a practical understanding about how the criminal justice system operates in the community

• NO JUDGES

Who is on the Council?

Senior member of an academic institution• Professor Arie Freiberg (Chairperson)

Community issues affecting courts• VACANT• Mr Hugh De Kretser (CEO Fed of Community Legal Centres)• Ms Therese McCarthy (Deputy Chairperson)

Highly experienced defence lawyer• Mr David Grace QC

Highly experienced prosecution lawyer• Mr Gavin Silbert SC

Who is on the Council?

Member of a victim of crime support or advocacy group

• Professor Jenny Morgan (Academic)• Ms Barbara Rozenes (CEO Court Network)

Persons with experience in the operation of the criminal justice system

• Assistant Commissioner Ken Lay (Vic Pol)• Ms Lisa Ward, Consultant• Ms Carmel Arthur (Victim of crime) • Mr David Ware ( ex Dep Commissioner, Strategic and Financial

Services, Corrections Victoria)

Qld Council s 202

• Victims of crime• Justice matters re ATSI people• Domestic and family violence• Vulnerable people facing the criminal justice system• Law enforcement• Crime prevention• Criminal prosecutions• Criminal defence• Corrective services juvenile justice• Criminal justice policy• Criminal law/sentencing• criminology

Tasmanian Council 2010

• Informing public opinion on crime and sentencing• Give community a stronger voice• Undertake research• Engage in community consultation• Enhance quality of community debate

• 2 members of community• University of Tasmania• Legal profession• Judges, magistrates• Commissioner of Police• DPP

Interface with sentencing policy

• Independent advice and systemic research

• No power to implement specific recommendations

• Broad goal to increase public awareness and understanding of sentencing issues, and so improve the quality of public debate on sentencing issues

Guidelines

• Unlike most other Councils/Panels, its main role has not been to set guidelines.

• In first 6 years it has not been called upon to assist the Court of Appeal in a guideline judgment.

• Legislation does not allow court to set ‘tariffs’ cf Qld?

• Australian/Victorian approach is antipathetic to guideline systems: cf Qld?

• ‘intuitive synthesis’ is the preferred approach

Aim

Aim was to provide

‘an opportunity for appeal judges to share their collective experience with primary judges and articulate unifying principles to guide the exercise of judicial discretion’ (Victoria, Hansard, Legislative Assembly 2003:479).

Sentencing Act 1991, s.6AE, Court of Appeal must have regard to>(a) the need to promote consistency of approach in sentencing offenders; and >(b) the need to promote public confidence in the criminal justice system;

>Qld can make guidelines for Cth offences

Sentencing Advisory Council

Projects

Projects and recommendations

Maximum Penalties for Repeat Drink Driving(September 2005)

Changes to six repeat drink driving offences under section 49(1) of the Road Safety Act 1986

Implemented in the Road Legislation (Projects and Road Safety) Act 2006

Suspended Sentences: Final Report Part 1(May 2006)

Phasing out of the suspended sentence option to be replaced with conditional sentencing orders.Modifications to the suspended sentence order in the interim including guidelines for when suspension is inappropriate, restricting access for serious offences and reinforcing strict breach requirements

Partial acceptance of recommendationsAmendments to modify the suspended sentence order were implemented in the Sentencing (Suspended Sentences) Act 2006

Projects and recommendationsReview of Maximum Penalties for Preparatory Offences Report

(December 2006)

No change to the current maximum penalties for preparatory offences.

Accepted

High Risk Offenders: Post Sentence Supervision and Detention Final Report

(May 2007)

A majority (not unanimous) view that continued detention is not warranted.

The use of other strategies to reduce the risk of reoffending as a higher priority than continuing detention.

If the Government introduces a continuing detention scheme, it should incorporate safeguards including a risk management monitor, high risk offenders board, shorter orders, DPP driven applications, appeals to the court of appeal and independent evaluation after 5 years

Recommendations partially implemented in the Serious Sex Offenders (Detention and Supervision) Act 2009.

Projects and recommendations

Sentence Indication and Specified Sentence Discounts: Final Report

(September 2007)

Courts to state the effect of the guilty plea in the sentence

Statutory support for sentence indication in summary cases

A pilot sentence indication project in the County Court

Statutory support for sentence indication in the county court

Implemented

Projects and recommendations

Maximum Penalty for Negligently Causing Serious Injury Report

(October 2007)

Maximum penalty should be increased from five years to 10 years

Split offence of dangerous driving causing death or serious injury into two separate offences with different maximum penalties.

Implemented in the Crimes Amendment (Child Homicide) Act 2008

Projects and recommendations

Suspended Sentences: Final Report Part 2

(April 2008)

Deferring the removal of the power to suspend sentences until such time as proposed reforms to other intermediate sentencing orders have been made and fully tested

Home detention and ICO recast as sentences in their own right

ICOs and CBOs remain as separate sentencing options.

Introduce a new Community-Based Order for Young Adult Offenders (CBO (YAO))

The power to defer sentencing extended to the County Court, and the current age restrictions removed

The Government has not adopted the major recommendation on suspended sentences. It has announced that it will remove suspended sentences for serious offences from mid-2011.

However, has announced that it will recast ICOs in line with the Council’s recommendations.

The home detention recommendations have been partially implemented in the Justice Legislation Amendment Act 2010.

The Government has also announced that it will give further consideration to the remaining recommendations.

Amendments to Sentencing Act 2010??

Projects and recommendations

Breaching Intervention Orders Report

(June 2008)

The same maximum penalty for each of the three offences (breach of a family violence intervention order; breach of a stalking intervention order; and breach of a police-issued family violence safety notice)

No separate offence with a higher maximum penalty for a second or subsequent offence of breach.

No separate aggravated offence with a higher maximum penalty.

Implemented in the Family Violence Protection Act 2008.

Projects and recommendationsDriving While Disqualified or Suspended Report

(April 2009)

Repeal of mandatory minimum penalty for repeat offence.

Increased deterrence by mechanisms to increase detection of the offence.

Expansion of availability of impoundment, immobilisation and forfeiture of vehicles.

Earlier intervention for drink drivers.

The Government has announced that it will repeal the mandatory minimum penalty and will adopt the recommendations relating to the impoundment and forfeiture of vehicles. 2010

Victoria Police have acted to increase the detection of this offence.

Projects and recommendations

Sentencing for offences motivated by hatred or prejudice

(July 2009)

Recommendation on the form of a new statutory aggravating factor

Implemented in the Sentencing Amendment Act 2009

Sentencing, Parole Cancellation and Confiscation Orders Report

(December 2009)

No change to the current approach.

Accepted

Sentence Indication: A Report on the Pilot Scheme

(February 2010)

That the scheme be continued indefinitely

Implemented in the Justice Legislation Amendment Act 2010

Possible extension to provide more specific indication

Projects and recommendations

Maximum Penalties for Sexual Penetration with a Child under 16 Report

(September 2009)

No change to the existing maximum penalties.

Increase to the ‘no defence’ age, from under 10 to under 12 years.

Implemented in the Crimes Legislation Amendment Act 2009

Other completed projects

• Criminal justice diversion program

• Mandatory sentencing

• Recidivism of sex offenders

• Provocation as a sentencing factor

• Victoria’s prison population

• Homicide in Victoria: Offenders, victims and sentencing

• Gender and sentencing

Current projects

• Public opinion survey

• Crimes Act Review: Maximum Penalties• Extensive community consultation

• Focus groups

• On-line forum

• Sentence appeals

• Koori sentencing statistics

• Children’s Court sentencing

• Sentencing statistics: detailed data base

• Clearinghouse re effectiveness of sentencing orders

The public opinion project

Sentencing Advisory Council statutory function is to gauge public opinion

• Content – what we know• Methodology – how we measure opinion• Goal – to create a suite of measurement tools for use in

specific projects and for general understanding of public opinion

Myths and Misconceptions: Public Opinion and Public Judgment About Sentencing (2006)

[Cited extensively in WCB v R [2010] VSCA 230]

Currently working on national survey of public opinion

Public opinion and sentencing policy

Conference in July 2006 on public opinion, sentencing councils and sentencing policyPublication January 2008 of bookFreiberg and Gelb (eds), Penal Populism, Sentencing Councils and Sentencing Policy (Federation Press 2008) Looks at USA, UK,NSW, Victoria, NZ, Scotland, South Africa.

Sentencing Advisory Council

Community Engagement

Stakeholder engagement

Our stakeholders include:• Members of the legal profession• Victims of crime• Offenders• Judges and court staff• Staff of corrections • General community

Stakeholder engagement

Our methods include:• Key stakeholder Interviews• Roundtables• Focus group workshops• Submissions• Deliberative opinion polls • Public forums• Maximum penalties project: focused forums

Sentencing Advisory Council

You be the Judge

You be the Judge

Public presentations of vignettes/case studies aimed at providing the public with an understanding of the processes and complexities of sentencing.

You be the Judge

• 2005-2008 – 16 sessions to 1100 people.• More presentations recently as SAC staff trained to provide

them• 2009-2010 – 49 sessions to nearly 2000 people eg

• U3A• Probus• Mt Eliza Secondary College• VACRO• RMIT Journalism students• National Seniors – Knox

You be the Judge for schools

Teachers’ Guide includes: • Case studies with resources• essential background information required by teachers

to understand the what, the why and the how of sentencing

• aims of the program and how teachers may use the materials to support learning programs, through either a discipline specific or integrated learning approach for students in Years 9 -12.

• 1,995 downloads of teaching materials

• 700 hard copies and CDs

You be the judge

• YBTJ video to be launched in late 2010

Judge for Yourself

Booklet produced by Judicial Conference of Australia with assistance of Sentencing Advisory Council

Sentencing Advisory Council

Sentencing Monitoring

Statistics

A central function of Council is to conduct research into sentencing trends and issues and to produce sentencing statistics. Statistics are used:

• to inform the public and others about what is happening in sentencing

• to inform our own research into sentencing trends and issues

• to provide greater transparency of the judicial and correctional process

• as a basis for sociological critique or research into potential law reform.

Statistical reports produced by the Council

• Sentencing Monitoring resource - provides statistical information regarding sentencing trends, adult and young offender prisoner populations and persons serving correctional orders other than imprisonment

• Sentencing snapshots – 100 higher courts snapshots released by June 2010

• In-depth analysis of the use of suspended sentences

Online Sentencing Monitoring

People sentenced• flow of people through each of Victoria's criminal courts.

Sentencing outcomes • sentencing trends and patterns for the higher, Magistrates' and

Children's Courts. • historical sentencing trend data are presented where available.

Prison and detention• trends in the composition of Victoria's adult prisoner and youth

detainee population. • selected information on the prisoner population of other

States/Territories and countriesCommunity corrections

• persons sentenced to correctional orders to be served in the community in Victoria.

• selected information on community correction orders in other States/Territories and Australia

Sentencing Snapshots

HIGHER COURTS• Murder• Manslaughter• Culpable driving causing death• Rape• Robbery• Armed robbery• Burglary • Aggravated burglary• Causing serious injury intentionally• Causing serious injury recklessly• Causing injury intentionally or recklessly • Affray

Higher courts

• Sentencing data base being compiled

• Provide details not just of outcomes but of relevant factors that might influence sentence

• Assist courts, prosecution and defence:• Macneil-Brown [2008] VSCA 190

• 26 of the most common offences on web site• SACSTAT [on line data base] being piloted in

Magistrates’ Court• Public release in 2011

Magistrates’ Court

Evaluation 2008

• Independent evaluation undertaken in 2008 for purpose of funding renewal: a condition of original funding

• 50 interviews

• Cost-benefit analysis

Summary of activities

• 51 statistical publications• Research in 12 areas > 25 research publications:

2,284 pages• 16 You Be the Judge sessions to 1100 individuals;

780 teacher kits distributed• Cited over 40 times in Supreme Court• Around 30,000 hits on web page [2009]• Over 20,000 downloads [2009]

Evaluation and observations

• Established partly• in response to eroding public confidence; penal populism and

• In response to issues of consistency of sentencing

• A motivating force was government’s desire to be seen to be responsive to public opinion

• SAC’s role seen as a mediating force between political/judicial/community interests

• A mechanism for engagement as much as for dealing with sentencing disparities

Evaluation and observations

• Public education seen as an important activity• Teachers see the Council and its materials as valuable, accessible

and useful• Recommendation to expand this function• Journalists (2 from main newspapers) found statistics and publications

very helpful• SAC attempts to keep media on side: provide advance briefings and

Chair is available for interviews• SAC seen as open, honest, credible, reliable and effective• Significant number of mentions in media• 3760 Google mentions of SAC Victoria [154,000 in Sept 2010; 13,100

Yahoo]

Evaluation and observations

• Media education seen as important

• Judges value independent voice of SAC in the media when they are unable to, or are reluctant to speak publicly on contentious issues

• SAC publications seen as authoritative and used to inform public debate

• SAC rated 4/5 for objectivity/impartiality and usefulness

• Provide easily accessible information about sentencing

• Useful for public service in preparing briefs and dealing with the public

Evaluation and observations

• Although the government does not refer every contentious sentencing issue to the SAC, most of the difficult and complex ones have been referred.

• Important role as ‘crisis defuser’

• Amount and quality of consultation seen as important, although tend to see the ‘usual suspects’

• General calls for submissions not very valuable

• Consultees appreciated feedback: respect and validation

• SAC seen as impartial and fair – even if did not agree

• Diverse membership seen as strength and good practice

Evaluation and observations

• Capacity to generate own research agenda seen as important

• Seen as cost effective: about $1.8 million pa

• FINDINGS:• Impact on sentencing consistency due to sentencing statistics

• Improved support for sentencing decisions

• Better grounded sentencing reforms

• Increased understanding of sentencing system

• Should have better links with ministers other than AG

SAC Website

Contact us

Sentencing Advisory Council

www.sentencingcouncil.vic.gov.au

contact@sentencingcouncil.vic.gov.au

1300 363 196

© Sentencing Advisory Council 2006Authorised and printed by Sentencing Advisory Council, 436 Lonsdale Street, Melbourne.