Sentencing Amendment (Sentencing Standards) Bill 2017 | Sue Pennicuik

Sentencing Amendment (Sentencing Standards) Bill 2017

The Sentencing Amendment (Sentencing Standards) Bill 2017 does the following major things. It repeals the baseline sentencing scheme which was introduced by the previous government and in its stead establishes a new scheme called the standard sentencing scheme for certain indictable offences. It also enhances the guideline judgement scheme and makes an amendment to the definition of 'arson offence'.
Tuesday, August 8, 2017 - 11:30am
Sue Pennicuik

Ms PENNICUIK (Southern Metropolitan) — The Sentencing Amendment (Sentencing Standards) Bill 2017 does the following major things. It repeals the baseline sentencing scheme which was introduced by the previous government and in its stead establishes a new scheme called the standard sentencing scheme for certain indictable offences. It also enhances the guideline judgement scheme and makes an amendment to the definition of 'arson offence'. Amendments are made to the Sentencing Act 1991, the Crimes Act 1958 and the Drugs, Poisons and Controlled Substances Act 1981 to give effect to these amendments.

The Greens are very supportive of part 2 of the bill, which repeals the baseline sentencing provisions in the Sentencing Act, Crimes Act and Drugs, Poisons and Controlled Substances Act. The Greens always opposed the introduction of the baseline sentencing regime. When it was introduced by the previous government I argued that it would not be workable and it would make the sentencing regime too complex. The Court of Appeal in the case of the Director of Public Prosecutions versus Walters, a pseudonym, in 2015 held that baseline sentencing provisions were incapable of being given any practical operation. The government announced that it would repeal baseline sentencing some time ago, and now with this bill that is occurring.

However, we are concerned with part 3 of the bill, which establishes the standard sentence scheme instead of baseline sentencing. While it is not as complicated and unwieldy as baseline sentencing, we believe it is also unwarranted and will unnecessarily complicate sentencing in Victoria. I have also had some amendments drawn up to remove that part of the bill, which I understand in some ways is the main part of the bill. I am happy to have those amendments circulated.

Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.

Ms PENNICUIK — With regard to baseline sentencing, by a strong majority the court held that the legislation was incurably defective. That was because the legislation did not provide any mechanism for the achievement of the intended future median. Further, the act erroneously conflated the idea of a median sentence with a sentence of mid-range seriousness. It was held that there was no way to properly overcome those defects without the judiciary exceeding the limits of its interpretive power in order to try to fill a gap in the legislation. Further, the Court of Appeal observed that the baseline sentences act was plainly contemplated to create a two-stage sentencing methodology in practice. That was notwithstanding the claim in the explanatory memorandum that the baseline sentencing was not a starting point for judges and did not require two-stage sentencing.

The Court of Appeal observed that it is a tenet of sentencing law that the sentence imposed in a particular case reflects the judge's evaluation of the full range of factors bearing on the nature and circumstances of the offending and the personal circumstances and past history of the offender. The mere fact that two offenders receive the same sentence for the same offence provides little or no information as to whether the cases are in any way comparable.

By pursuing a standard sentence scheme, however, the government has missed the opportunity to take the advice of the Sentencing Advisory Council in its sentencing report whereby, after identifying some offences for which sentencing guidance is required, the council recommended that guideline judgements are the most effective, influential and persuasive form of providing sentencing guidance. The council made it clear that guideline judgements have the best capacity to address the issues identified in its analysis of offences with sentencing problems. It also said that guideline judgements can address sentencing concerns that are broader than concerns relating to a particular offence, such as sentencing for family violence offences.

In my opinion the government should be giving guideline judgements the chance to be utilised first to address the problem identified of sentencing for certain offences. The Sentencing Advisory Council, while it identified a number of identifiable offences, said in its preface that:

The council believes that there is no evidence to suggest that there are broad or systemic problems with the sentencing of all offences in Victoria. The vast majority of all sentences imposed are not subject to an appeal, and their imposition is both appropriate and unremarkable. However, the system is not perfect, and there are valid concerns regarding some aspects of sentencing, such as the sentencing standards for sexual offences, particularly sexual offences against children.

The Sentencing Advisory Council also went on to say:

The council's preferred model is an enhanced guideline judgement scheme that will create an evolving, inclusive, evidence-based, and judge-led process that can respond to changing community attitudes and legislative reforms. If a standard sentence scheme is adopted, the council recommends that it should be targeted at those offences for which there is evidence of significant problems that can be addressed by sentencing guidance, and that such a scheme should be combined …

However, I am of the view that the enhanced guideline judgements would be the first way to go.

Liberty Victoria reiterates this, referring also to the Court of Appeal providing authority and guidance in matters such as family violence offending whereby in DPP v. Meyers the court stated:

Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category —

that is, the cases they were considering at the time —

they are symptomatic of what can fairly be described as an epidemic of domestic violence.

General deterrence is, accordingly, a sentencing principle of great importance in cases such as these.

The Greens are supportive of the general thrust of the report of the Sentencing Advisory Council, which was commissioned by the Attorney-General in 2015. It was a very comprehensive report that was produced by the Sentencing Advisory Council of some 400 pages, and the upshot of it was to recommend the increased use of enhanced guideline judgements and not go down the road of sentencing standards, which are similar to if not the same as baseline sentencing.

Liberty Victoria went on to say that the 'sentencing scheme is unlikely to be found to be incurably defective', and that:

The bill attempts to address some of the above criticisms from the Court of Appeal and is modelled on the New South Wales model of standard non-parole periods, except it applies to head sentences.

Liberty Victoria said it:

… strongly opposes the introduction of a NSW style standard non-parole period scheme. The problem with such a system is that it leads to a distortion of the judicial task and results in cases such as Muldrock v. The Queen ('Muldrock'), where judicial officers fail to give appropriate weight to matters in mitigation (in that case intellectual disability) because of giving too much weight to the standard period. Further, as the High Court made plain in Muldrock, such a system still does not permit the court to take a two-stage approach to sentencing, and the standard non-parole period only concerns a hypothetical case in the mid-range offence of objective seriousness, and says nothing about the personal circumstances of an individual offender.

Or surrounding the offence that occurred, I would add.

Liberty Victoria's submission goes on to state:

While the bill is expressed in a manner that does not bind judges, and purports to preserve the 'intuitive synthesis', there is a real issue as to whether it will result in two-stage sentencing … It leads to an artificial compression in sentencing towards the standard sentence.

I would agree with that.

By introducing this standard sentence and making that a factor that the court must take into account, it would seem that over time it will lead courts towards the standard sentence rather than applying the principles of the Sentencing Act 1991, which look at mitigating and aggravating circumstances, and they will look at the maximum sentences that can be applied. There are particular circumstances in each case.

In so many instances in the last few parliaments I have stood up here to defend judicial discretion and the separation of powers. The principles, as outlined in the Sentencing Act, have served us well over a very long time — 25 years now, a quarter of a century. There is no need to introduce standard sentencing. The advisory council itself mentioned that in its opinion there was really only that very narrow range of sentences and that they were of the view that sentences were in need of review. But that could be done by the use of guideline judgements. We do support that aspect of the bill.

Liberty Victoria also made the point that:

The … mechanism can easily be ratcheted up over time to cover more offences, and to make exceptions more difficult to satisfy. For example, the 'interests of justice' exception with regard to standard non-parole periods could easily become a 'compelling reasons' or 'exceptional circumstances' test.

We have already seen this very recently inserted into legislation. This marks a further erosion of the principle of the separation of powers. It is a product of, and it will make the whole sentencing regime more prone to, the law and order auction that we continue to see taken by the major parties day after day, year after year, and which has resulted in so many additions and ad hoc changes to the Sentencing Act, the Crimes Act 1958 and the Summary Offences Act 1966, such that, really, we have ended up with a hotchpotch of offences, sentences, non-parole periods and minimum sentences inserted into these various acts that do not make it easy for the courts to be consistent and to apply consistency in sentencing. That is not what has occurred through these additions, and this act, as well as introducing a sentencing standard, is introducing minimum non-parole periods of percentages of standards. So again we are getting into applying numerical formulae to sentencing. That is not the way we should be going with sentencing. I am concerned about all of that.

I would like to go to Mr Rich-Phillips's points, which he always mentions in these types of debates: he says that sentencing is out of step with community standards and community expectations. He never provides any evidence that that is the case. In fact the only evidence that does exist about this particular factor is that that is not the case. And as I have mentioned before, there are empirical studies that have been done with regard to taking ordinary citizens through particular cases with judges, presenting the evidence to them, and what happens is that in the majority of cases the community members agree with the sentence that was handed down by the judge or in fact in many cases feel that the judge is being too harsh.

It is when the community is only presented with some of the facts — headline facts, as they read them in the tabloid press — that their views are skewed. The cases that get covered are not the vast majority of cases that go through the courts; they are of course the more, let us say, sensational, controversial or serious matters that come before the courts.

In 2006 a Sentencing Advisory Council paper found that, when people are given more information, their level of punitiveness drops dramatically and that, despite apparent punitiveness, public sentencing preferences are similar to those expressed by the judiciary. This is not a phenomenon peculiar to Victoria. When provided with the information of the kind provided to the judge in court, the public come to a view very similar to the judge's as to what sentence is appropriate. An informed community does not demand lengthy sentences. The research provides an empirical foundation for the view that an informed and objective public does not consider sentences imposed by judges in particular cases to be too lenient. I have mentioned the Austin Lovegrove public opinion, sentencing and lenience study involving judges consulting the community and Public Judgement on Sentencing: Final Results from the Tasmanian Jury Sentencing Study previously in this Parliament as evidence that that is the case.

It is very easy to stand up in here and say, 'Sentences are not in line with community expectations', but the empirical evidence that is available on this subject does not support that statement. The empirical evidence is that when people are presented with all the facts in a particular case — the same as those that are presented in a court — they actually come to the same or a very similar view as the judicial officers. That is the empirical evidence.

Mr Dalidakis — Which studies?

Ms PENNICUIK — I just read some out, Mr Dalidakis, and you can apprise yourself of them.

The bill we have before us establishes a standard sentencing scheme for 12 offences, some of which the Sentencing Advisory Council specifically said should not have a standard sentencing scheme applied to them. It provides for a methodology for prescribing a standard sentence, which is a percentage of the maximum penalty.

Honourable members interjecting.

Ms PENNICUIK — Acting President, throughout my whole contribution I have had a very large conversation going on over there, and now one is going on here. It is very, very difficult to concentrate on my contribution. I ask you to call other members into line.

The ACTING PRESIDENT (Mr Ramsay) — Order! I think Ms Pennicuik has a point. Mr Dalidakis, you are having running commentary, which I think Ms Pennicuik is finding very distracting, as am I. I am sure Mr Davis and Mr Dalla-Riva will desist from their session up on the back bench. Continue without assistance, thank you, Ms Pennicuik.

Ms PENNICUIK — You are very kind. Thank you, Acting President. As I was saying, the mechanism will be a percentage of the maximum sentence for a particular offence and will be the non-parole period, which is in effect a mandatory sentence. That is another reason why the Greens will not be supporting the standard sentencing regime. Under new section 11A(4):

Unless the court considers that it is in the interests of justice … the court must fix a non-parole period of at least—

(a)    30 years if the relevant term is the term of the offender's natural life; or

(b)   70% of the relevant term if that term is a term of 20 years or more; or

(c)    60% of the relevant term if that term is a term of less than 20 years …

which is also higher than was recommended by the Sentencing Advisory Council in its report to the Attorney-General.

Again I will say that a better bill would have been a bill that came here putting in the part about enhanced guideline judgements. That would have been repealing the baseline sentencing and enhancing guideline judgements, and it would have been a very good bill. Unfortunately, while we support those parts of the bill, we do not support the introduction of the standard sentencing regime into the Sentencing Act. In fact the Sentencing Advisory Council made in its report a recommendation to the government along the lines of what I was saying before — that so many changes have been made to the Sentencing Act that it should be reviewed in terms of the ability of the courts to follow it and apply consistent sentences, as well as being able to maintain that judicial discretion and being able to impose the sentence that the judicial officer feels fits the particular circumstances of that offence. This bill continues to make that more difficult.

In committee:

Ms PENNICUIK (Southern Metropolitan) — I move:

1.     Clause 1, page 2, lines 1 and 2, omit all words and expressions on these lines.

I move amendment 1 standing in my name, an amendment to the purposes clause, which takes out the part of the clause which refers to the introduction of a standard sentencing regime in the Sentencing Act 1991. It removes clause 1(a)(ii) — 'to provide for standard sentences for indictable offences'. In discussions with the Clerk we have agreed that this amendment, which is to remove that part of the purposes clause, is actually a test for the following 13 amendments, which could be regarded as consequential amendments and which omit clauses that give effect to the clause just mentioned, which is the one that introduces the standard sentencing scheme. This is the bulk of the bill in some ways.

If I could just explain our reasoning behind this, the Greens do support the repeal of baseline sentencing. We never supported the introduction of baseline sentencing. It was never going to work, and on its first outing in the courts, it did not work. The Court of Appeal made it very clear why it could not possibly work. We are very supportive of that part of the bill, which is the first part of the purposes clause. However, the government has gone on to introduce baseline sentencing lite, which is called standard sentencing. It has introduced for about 12 indictable offences what is called a standard sentencing scheme, whereby the court has to take into account the standard sentence for those indictable offences when imposing a sentence. A minimum non-parole period must also be applied according to a percentage formula. We do not support that.

We support the courts, being made up of experienced judicial officers, applying the Sentencing Act and its principles and applying those according to the circumstances of every particular case.

As I said in my contribution to the second-reading debate, Mr Rich-Phillips in his contribution talked about community expectations. Mr Finn talked about community expectations. The Deputy President talked about community expectations. I think every speaker talked about community expectations and that the community expects certain things when they go to a court either as an offender — a person charged with an offence — or, because there has been an offence committed, as the victim of an offence. What they do expect is that their matter will be taken seriously and adjudged fairly.

There is no evidence that the community expects standard sentencing, because I am sure most people in the community would not know what it is. So to say that is what the community expects is just erroneous. What I think the community expects is that the judicial officer they are appearing before will take account of all the circumstances and when coming to impose a sentence will have taken into account all the relevant facts, be they mitigating or aggravating circumstances. That is what they expect. That is what the offender expects and should expect, and that is what the victims expect and should expect. Standard sentencing as outlined in this bill will not make sentences more consistent or more fair and in fact may lead to unfair outcomes.

As I mentioned in my earlier contribution, there have been so many changes, including the introduction of minimum sentences, that the act has in fact become more complicated. The Sentencing Advisory Council requested that the Attorney-General consider reviewing or requesting that it, the Sentencing Advisory Council, review the various sentencing schemes within the Sentencing Act with the aim of ensuring that there is a coherent and transparent sentencing framework in Victoria.

I believe that this standard sentencing regime will not provide that and will only make it less transparent, less coherent, more complicated and more unfair. The council itself noted that limitations exist with standard sentencing in that it can be problematic. For example, when the court is considering offending by an offender other than the principal offender in the first degree, such as offending by a co-offender who was involved in the commission of an offence and is still subject to the standard sentence. Similarly, having regard to the standard sentence is problematic when sentencing charges such as rolled-up, representative or course of conduct charges that represent multiple incidents of offending rather than a single event. Finally, a standard sentence may be of limited guidance when a court is considering the imposition of an aggregate sentence which encompasses multiple instances of offending across different charges, although aggregate sentences are less common in the higher courts.

Deputy President, they are the reasons the Greens have moved this amendment to remove that section of the bill that replaces baseline sentencing with standard sentencing schemes. We are in favour of repeal of baseline sentencing but not in favour of putting standard sentencing in in its stead. Lastly, another main reason for it is the Greens do not support minimum non-parole periods or minimum sentences or mandatory sentencing, as again that means the court can be in a position of imposing unjust sentences. Really if the court is going to impose a sentence which is around hypothetically what a minimum sentence would be, then there is no need for them. The only time they come into play is when the court is forced by the existence of a minimum sentence to apply a sentence which actually is higher than the court would otherwise impose due to mitigating circumstances. That is one reason we do not support them, but we also do not support them because of the principle of judicial discretion and leaving it to the courts, who have the experience, to use their discretion and follow the Sentencing Act.

Because I am not going to move all the amendments I am going to speak to them all in one go. The other part of this is we do support the other part of the bill, which is the introduction of the enhanced guideline judgements. The Sentencing Advisory Council in its report did say that in some areas there may be, particularly with sexual offences against children, which were the offences it singled out — some sexual offences and sexual offences against children — some case for more guideline judgement on sentencing. Their words I think in the preface are very much worth repeating — that is:

… an enhanced guideline judgement scheme that will create an evolving, inclusive, evidence-based, and judge-led process that can respond to changing community attitudes and legislative reforms …

is the best way to go.

Where it is seen a mistake has been made in sentencing or in certain offences, such as child sexual offences, there need to be some judgement guidelines to the judicial officers that that is the way to go. That is why I am proposing these amendments to take out the standard sentencing scheme. If that were the case, that would leave the bill with a repeal of baseline sentencing and the enhanced guideline judgements, and that to me is not a bad bill. That is a good bill, and that is why we are proposing these amendments.
Previous DocumentMsNext Document PENNICUIK (Southern Metropolitan) — The Greens will not be supporting the amendment put forward by Mr Rich-Phillips to delete part 4 of the bill. As I expressed in my contribution and in my remarks on the amendments that I moved earlier, the reason is that we support the further use of guideline judgements. In fact the Sentencing Advisory Council said it considers that:

… sentencing guidance is best provided by the courts, and that guideline judgements are the most influential and persuasive form of sentencing guidance. The council is of the view that guideline judgements have the best capacity to address the issues identified in its analysis of offences with sentencing problems …

That was part of its third recommendation. It continued:

The council also considers that guideline judgements can address sentencing concerns that are broader than concerns regarding a particular offence —

or a particular case —

such as sentencing for family violence offences —

which I mentioned in my contribution.

The council also made the point that it believes sentencing guidance is currently underutilised and also recommended that there be provision for the application of guideline judgements by the Attorney-General particularly for systemic issues. We are of the view that this would be the best way to go to repeal baseline sentences and rely more on guideline judgements. We do not agree with Mr Rich-Phillips's assessment of them, so we do not support the amendment.