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 The Sentencing Act 1989 was repealed, along with such other statutes as the Corrective Services Act 1952, Community Service Orders Act 1979, Home Detention Act 1996, and Periodic Detention of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.