This paper analyses major developments in sentencing procedure, practice and
policy in New South Wales since 1998. Of fundamental importance among the
statutory changes was the commencement of a package of new sentencing
legislation in 2000. Case law was another influential force, an obvious example
being the initiation of formal guideline judgments in 1998 by the Court of
Criminal Appeal. Proposals and recommendations from Law Reform Commissions,
Parliamentary Committees, and other parties are also addressed.
Sentencing standards interstate and overseas are referred to for comparative
purposes but are not covered in as much detail. However, grid sentencing and
mandatory sentencing receive closer examination, as although they have no
counterpart in New South Wales, they represent the opposite extreme to
unfettered judicial discretion.
Issues relating to the sentencing of juveniles, and the role of victims in the
sentencing process, are
not presented here. Instead, they will be dealt
with in separate, forthcoming papers on young offenders and victims' rights.
Consolidation of sentencing legislation (pages 3-13)
Sentencing legislation in New South Wales was reorganised in 1999-2000. The
Sentencing Act 1989 was repealed, along with such other statutes as the
Corrective Services Act 1952,
Community Service Orders Act 1979,
Home Detention Act 1996, and
Periodic Detention of Prisoners Act
1981. Provisions were transferred from those Acts, as well as from various
sections of the
Crimes Act 1900,
Criminal Procedure Act 1986, and
Justices Act 1902, to create 2 new Acts: the
Crimes (Sentencing
Procedure) Act 1999 and
Crimes (Administration of Sentences) Act
1999. The substance of sentencing law remained the same, with most
alterations being of a minor nature. However, some significant changes
occurred, including: the reintroduction of suspended sentences; the
codification of the 'Griffith's remand'; the abolition of common law bonds; and
the requirement that judges state reasons for imposing a sentence of
imprisonment of 6 months or less.
New offences (pages 14-17)
A range of new offences was created in the last 4 years, in response to
allegedly lenient sentences or trends in criminal behaviour. Some of the
topical criminal issues in 2001 were: gang-related offences, particularly gang
rape; the unlawful use of premises for drug activities; bomb hoaxes; and the
use of computers for unauthorised purposes. Aggravated offences, with higher
maximum penalties, were also introduced for several existing crimes.
Sentences of full-time imprisonment (pages 18-23)
In recent years, statutory provisions in New South Wales have been strengthened
to reinforce the common law principle that imprisonment should be imposed as a
last resort. However, statistics show that the proportion of offenders
receiving a sentence of imprisonment has remained stable or grown, depending on
the offence, over the past decade. The use of short term sentences of
imprisonment is particularly significant, as the majority of prisoners are
serving sentences of under 6 months. In November 2001, the Legislative
Council's Select Committee on the Increase in Prisoner Population recommended
that consideration be given to abolishing prison sentences of 6 months or less,
in order to promote alternatives to full-time custody, and to alleviate the
financial burden caused by the sharp rise in the prison population in the last
5 years.
Guideline judgments (pages 24-49)
The first formal guideline judgment was issued in New South Wales in 1998, as
an initiative of the Court of Criminal Appeal. In 1999, legislative provisions
were introduced to enable the Attorney-General to request a guideline judgment.
Five guidelines had been delivered by the end of 2001:
R v Jurisic
(1998) 45 NSWLR 209 on dangerous driving occasioning death or grievous bodily
harm;
R v Henry & Ors (1999) 46 NSWLR 346 on armed robbery;
R v
Ponfield & Ors (1999) 48 NSWLR 327 on break, enter and steal;
R v
Wong; R v Leung (1999) 48 NSWLR 340 on drug importation; and
R v
Thomson; R v Houlton (2000) 49 NSWLR 383 on the discount to be allowed for
pleading guilty. All except
R v Ponfield adopted a quantitative
approach, although the recommended sentence was expressed in different ways. A
sixth guideline, dealing with basic and aggravated sexual assault, is due for
hearing in March 2002.
In November 2001, the High Court held that the guideline judgment in
R v
Wong; R v Leung exceeded the Court of Criminal Appeal's jurisdiction by
formulating sentence categories that were prescriptive and that contravened a
Commonwealth statute. In response, the New South Wales Parliament passed
amendments to the
Crimes (Sentencing Procedure) Act 1999 to specifically
authorise, and retrospectively protect, guideline judgments issued on the
Court's own motion.
The adoption of sentencing guidelines in New South Wales was influenced by the
English Court of Appeal, which started the practice in the 1970s. The
Crime
and Disorder Act 1998 (UK) implemented requirements for the framing of
guidelines and established a Sentencing Advisory Panel. No other State or
Territory of Australia has pursued guideline judgments as actively as New South
Wales, but Western Australia's legislative provisions and sentence guidance
cases are probably the most comparable.
Life sentence redeterminations (pages 50-61)
Certain offenders who were sentenced to life imprisonment before 'truth in
sentencing' became operative in 1990 are eligible to have their sentences
redetermined by the Supreme Court. In 2001, new restrictions were imposed upon
the applications of life sentence prisoners who, in the opinion of the original
sentencing judge, should never be released. The
Crimes Legislation Amendment
(Existing Life Sentences) Act 2001 increased the period that such offenders
have to serve before becoming eligible to apply for a sentence redetermination,
from 20 to 30 years. The Amendment Act also provided that the Supreme Court was
not permitted to set a total term, only a non-parole period. This meant that
release must be assessed by the Parole Board. To be granted parole, a
non-release offender whose sentence has been redetermined must now be dying or
permanently incapacitated, and must demonstrate that he or she does not pose a
risk to the community.
A bill introduced by the Opposition in August 2000 advocated that any life
sentence prisoner who is the subject of a non-release recommendation be simply
ineligible to apply for a redetermination.
Mandatory sentences (pages 62-83)
In the Northern Territory, mandatory sentencing for a wide range of property
offences commenced in 1997. Adult offenders received a minimum term of
imprisonment of 14 days for a first offence, 90 days for a second offence, and
12 months for a third or subsequent offence. Limited scope existed for the
court to depart from these sentences in 'exceptional circumstances'. Juveniles
escaped a mandatory sentence for their first property offence but a second
conviction resulted in a minimum period of 28 days detention or a diversionary
program. No diversionary alternative was available for a third or subsequent
offence. The newly elected Labor Government repealed mandatory sentencing in
October 2001. Instead, adults who commit aggravated property offences must
receive a sentence of either imprisonment or a community work order. The
sentencing of juvenile property offenders is at the discretion of the court,
although the diversionary options of the previous system were retained.
Mandatory sentencing was implemented in Western Australia in 1996 and applies
to a third or subsequent conviction for home burglary. Adults must be sentenced
to a minimum of 12 months imprisonment, while juveniles either receive the same
period of detention or an intensive youth supervision order. The Labor
Government, which was elected in February 2001, supported mandatory sentencing
in Opposition and has indicated an intention to retain the laws.
Grid sentences (pages 84-96)
Grid sentencing was introduced in the United States of America in the 1970s
because of problems generated by the use of indeterminate sentencing there. It
currently operates Federally and in at least 15 States. The appropriate
sentence is identified on the grid by intersecting the offence's severity level
and the offender's criminal history score. The presumptive sentences are
usually devised by a sentencing commission, comprised of representatives from
the judiciary, prosecution, defence, corrective services and the community. The
latest versions of the Federal grid and the Minnesota grid, which served as a
prototype for many other States, are included as appendices to the briefing
paper.
In the late 1990s, the former Coalition Government of Western Australia
attempted to introduce formulae for the sentencing of certain offences.
However, the most prescriptive stage of the proposal in the
Sentencing
Amendment Bill 2000 was removed in the Legislative Council and, despite
receiving assent in December 2000, the legislation has not commenced.
Important High Court decisions on sentencing (pages 97-102)
The High Court's judgment in
Pearce v The Queen (1998) 194 CLR 610
changed the approach of New South Wales courts to the sentencing of an offender
for multiple crimes. Judges formerly concentrated on the total effective
sentence, to represent the overall criminality of the offences. Instead, the
High Court held that a suitable sentence is to be determined for each offence
before considering totality and whether to arrange the sentences concurrently
or consecutively. In
Ryan v The Queen (2001) 179 ALR 193, the Court
confirmed that an offender is entitled to some element of leniency at sentence
when there is evidence of good character, aside from the commission of the
offences in question. The issue in
The Queen v Olbrich (1999) 199 CLR
270 was whether the identification of the precise role of an offender in a drug
operation was essential to the sentencing process. The High Court found that
judges are
not obliged, in the absence of evidence on this point, to
sentence on the basis most favourable to the offender. The Court also clarified
the onus of proof and the standard of proof applicable at sentence.
Sentencing Aboriginal offenders (pages 103-110)
Aboriginal people continue to account for a disproportionately high number of
offenders and prisoners. The New South Wales Law Reform Commission, in its
report on the sentencing of Aboriginal offenders, recommended that legislation
be passed to require judges at sentence proceedings to have regard to customary
law if offenders are separately punished by their indigenous community. The
Commission also supported alternative penalties and community-based sentencing
for Aboriginal people. One initiative from Canada is a type of conferencing
called 'circle sentencing'. The participants include the offender, victim,
judge, prosecution and defence lawyers, and support persons. The circle
attempts to address the causes and affects of the crime, and supervises the
offender's completion of a sentencing plan. An inter-agency working party
developed a model for a 2 year pilot program of circle sentencing in New South
Wales, scheduled to commence in early 2002.
This paper reflects the law as at 21 January 2002.