Introduction
Sentencing legislation around Australia has undergone significant change in the past two decades, with all states and territories passing stand-alone legislation on this issue between 1988 and 2005.1 Speaking extra-curially, the former Chief Justice of New South Wales (NSW), James Spigelman, observed that:
[s]entencing engages the interest, and sometimes the passion, of the public more than anything else judges do.
The public’s attitude to the way judges impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice.[257] [258] [259]It is beyond the scope of this chapter to examine in detail the issues of public opinion in sentencing, including the role of penal populism and the media; the means of determining public opinion; and the extent to which it should be taken into account in individual cases.[260] However, the research generally indicates that increasing public information on sentencing is correlated with greater acceptance of and confidence in sentencing outcomes.[261] This chapter considers the issue of public information on sentencing by examining the collection and public dissemination of sentencing data in Australia, noting Freiberg and Krasnostein’s recent observation that:
In the criminal justice system generally, statistics are useful in many ways. They provide information about crime rates and criminals, about the operation of the courts and corrections and about dispositional outcomes. They make the law more accessible and transparent... For policy-makers and for the community they may promote informed debate as to whether sentences are inconsistent, whether sentencing levels are too high or too low and whether offences are prevalent (emphasis added).[262]
The role of sentencing councils in promoting public awareness and understanding of sentencing will also be considered.[263] In its 2006 review of federal sentencing, the Australian Law Reform Commission (ALRC) stated:
State sentencing councils in Australia are to be commended.
Better sentencing decisions and sound evidence-based policies can be promoted by disseminating sentencing statistics, analysing sentencing trends and conducting broad community consultation.[264]The ALRC also suggested that sentencing councils “may promote better sentencing decisions”.[265] [266] In their book on sentencing councils, Freiberg and Gelb argued: the sentencing council can respond to, and influence, public opinion via its educative role... the promulgation of accurate and up-to-date information on sentencing policy and practice would seem to be a key function of those bodies designed to promote and disseminate advice and information on sentencing. education and information can play a major role in improving public perceptions of, and confidence in, the criminal justice 9 system. Abadee, the foundation chair of the NSW Sentencing Council likewise saw such councils as “play[ing] a role in educating, informing and enhancing informed public opinion”.[267] The need for informing the public and the potential role of sentencing councils was considered by Allen and Hough as follows: the public is woefully ill-informed — or indeed misinformed — about crime and justice. People think that crime is rising, and have thought so consistently over the whole decade it has been falling. People think that the courts are far too soft, and their views have not shifted significantly over a period in which we have almost doubled our use of imprisonment. Who can convincingly correct these deep-rooted misperceptions? The media have no interest in doing so. The government cannot command sufficient trust to deliver a credible message to the public. Opposition politicians certainly do not wish to support the government of the day in telling a good story about law and order. Clearly there is a need for an authoritative, trusted institution that can perform this function.[268] The chapter then presents a case study by exploring the position in the Australian Capital Territory (ACT) with respect to recent developments in relation to sentencing law and policy and the call for increased sentencing data. In this context, it is argued that public access to comprehensible sentencing data is required to promote community understanding of sentencing practices and that sentencing councils have a critical role to play as a bridge between the criminal justice system and the general public.