Sentencing in the ACT: Where Have We Been and Where are We Going?

The ACT was the last Australian state or territory to introduce separate sentencing legislation, with the passage of the Crimes (Sentencing) Act 2005 (ACT) (“the Act”), the majority of which came into effect on 2 June 2006.

The following presents a chronology of the key recent developments in sentencing law, policy and practice in the ACT. It should be noted that quarterly crime statistics dating back to 2006 are available on the ACT Justice and Community Safety website. The sentencing data have become more detailed over time and include restorative justice and circle sentencing data. Information on sentencing outcomes by principal offence is also presented for the Magistrates, Children’s and Supreme Courts. Overall, the data are both up-to-date and detailed, but the discussion below indicates some concern about the accuracy and adequacy of the information. It should be noted that the ACT Government is currently reviewing these datasets, and is seeking information on the following issues:

1. How useful is the data set currently in the Profile?

2. Are there particular data sets that could be removed?

3. What new data could be incorporated into the Profile?

4. Could the data in the Profile be better presented? If so, how?

5.

Submissions to the Inquiry are due by 30 April 2013. The author has been invited to make a submission and will take the opportunity to consider possible improvements to the data.

In the lead-up to the 2008 ACT election, the Labor Government committed to spending $633 000 to create a sentencing council to gather evidence on sentencing in the ACT and make recommendations to the Government. In August 2009, the Standing Committee on Justice and Community Safety recommended that “the ACT Government consider the need to undertake a general review of sentencing in the ACT”.^[342]

In October 2009, the ACT Attorney-General established the ACT Law Reform Advisory Council (the LRAC). The Council’s first reference was a review of the use of suspended sentences in the ACT. The author was engaged by the LRAC to conduct the reviewand the ensuing report^[343] was endorsed by the Council and provided to the Attorney-General on 31 October 2010. The report noted:

Our research raises concerns about the accuracy of the ACT data. We found significant coding errors in recording the sentencing data in the Supreme Court Registry. As well as this miscoding, our analysis of the ACT sentencing remarks indicates some inconsistency in how sentences are understood and, therefore, recorded. Further, it appears that essential aspects of the court’s decision are not being recorded at all.^[344]

The report made a number of recommendations in relation to data collection and dissemination, including that:

• the Supreme Court Registry be resourced to take urgent steps to establish sound administrative systems which ensure that sentencing data are recorded accurately and comprehensively.

• the Supreme Court Registry be resourced to establish an electronic database of remarks made on sentencing, to be made publicly available on the Court website and/or through AustLii.^[345]

• the Attorney-General consider taking advantage of the opportunity created by systematic and reliable collection of sentencing data to make that data public on a regular basis.^[346]

The Government tabled the report and its response to it in the ACT Legislative Assembly on 22 September 2011.

In September 2011, shortly before the Government tabled its response to the LRAC report, the then Speaker of the Legislative Assembly, Shane Rattenbury MLA, introduced the Crimes (Sentencing) Bill 2011 (ACT).^[350] The Bill sought to “require the Government to collect and publish information about how well sentences being imposed in the ACT are meeting the purposes of sentencing”.^[351] The Bill also called for a review of the Act, including consideration of “any options that exist to improve the general level of knowledge and understanding that exists in the community about sentencing”.^[352] Rattenbury noted, when tabling the Bill, that the 2008 election promise to introduce a sentencing council “has not been actioned by government... due to concerns about value for money of a stand-alone ACT sentencing advisory council”.^[353] The Attorney-General, Simon Corbell, countered that “[t]he government is still considering its options on how best to meet this commitment”.^[354] As discussed below, however, this would no longer appear to be under consideration.

In October 2011, the ACT Government rejected the Crimes (Sentencing) Bill 2011, but gave “in-principle support for a sentencing review”.^[355] However, the Attorney-General noted that it

would be difficult, if not impossible, without improvements to the collection of sentencing data to capture the historical sentencing information required for such a review.

In November 2011, the Canberra Times reported that “one ACT judge has called for the creation of ‘sentencing ranges’ which offer guidelines based on broader analysis of similar cases”.^[357] In the judgment itself, Justice Penfold noted that

It is true that the ACT is a small jurisdiction, and that the number of sentences imposed in the Supreme Court each year is relatively small when compared with jurisdictions such as NSW. However, the Court imposes sentences for some hundreds of offences every year, and most sentences are for offences that fall into a fairly small group of common offences; there should be no insuperable obstacle to collecting enough sentencing information to identify ACT ranges for, say, the “top 5” offences in the categories of property offences, violence offences, sexual offences and pornography offences.^[358]

Although her Honour appears to have been concerned principally with sentencing consistency, the point remains apposite in the context of the present discussion about public education on sentencing.

Also in November 2011, the ACT Labor Government and Liberals passed the Crimes (Penalties) Amendment Act 2011 (ACT), which increased the legislated maximum penalties for a range of offences, culpable driving of a motor vehicle^[359] (increasing penalties from seven to 14 years, nine to 16 years, four to 10 years, and five to 12 years, depending on the circumstances). The amendments to the maximum penalty for culpable driving were prompted by the case of R v Creighton,^[360]3 who was sentenced to two years and nine months’ imprisonment after pleading guilty to culpable driving causing death. The amendment was opposed by Rattenbury, who argued that “harsher penalties did not reduce crime and called for research into community attitudes about sentencing”.^[361] Perhaps unusually, he had the support of the editor-at-large of the Canberra Times, Jack Waterford, who described Rattenbury as “sound on law and order matters”.

Writing in the Canberra Law Review,^[363] Rattenbury contended that:

There was no information or evidence provided by Government to support their rationale that the ACT community thought sentencing laws were deficient in this area. The argument at its highest pointed to laws interstate which imposed harsher punishments for similar crimes.^[364]

Indeed, it could be argued that the decision to increase the sentences in the absence of any information about actual sentencing patterns (rather than the outcome in one particular case) is akin to the edict of the Queen of Hearts in Alice in Wonderland: “Sentence first-verdict afterwards”.^[365]

Rattenbury suggested too that “[a] sentencing review in the ACT is the ideal way to update existing sentencing evidence and gather new emerging thinking and strategies”,^[366] adding that “[o]nly once we have conducted the review and gathered the data can we have a grasp of which areas we need to prioritise for attention and potential reform”.^[367]

This approach also has the support of the ACT Law Society, which at the time the Crimes (Penalties) Amendment Act 2011 (ACT) was passed “urged the Government to begin an evidence-based review of sentencing”. The President of the Law Society added that “The Society is concerned that available evidence does not support increasing penalties as an effective method of crime deterrent”.^[368] This view was confirmed in January 2012, when the Canberra Times noted that the Society had “previously expressed the view sentencing in the Territory should be studied before being reformed”.^[369]

In addition, the January 2012 media report noted that the ACT Government was continuing “to explore a partnership with the NSW Judicial Commission to improve the availability of sentencing information to the courts the legal profession, policymakers and the community”.^[370] In June 2012, the ACT Government announced its 2012-13 budget, which included an allocation of $2.2 million over four years for the creation of a new sentencing database, which would “provide clear data on sentencing laws and offence penalties”.^[371] When announcing the database, the Attorney-General added:

The system will assist the judiciary, prosecution and defence in the sentencing process by allowing users to research sentencing information to answer specific or generalised queries as well as serve as a tool for judicial deliberation.

The availability of sentencing information promotes consistency, reduces the number of appeals and supports the evidence-based policy reform process.

The ACT Labor Government went to the last election with a clear policy to improve sentencing practices in the Territory and this injection of funds fulfils that election commitment.^[372]

This announcement raises two important questions: Does this mean the option of introducing a sentencing council has been abandoned? And will the sentencing database be available to the public?

In relation to the first question, it was recently reported that “the ACT Government says a sentencing council is not on the agenda”. The Attorney-General added that “[t]he availability of reliable and comprehensive sentencing data is a necessary first step before further consideration is given to the possible establishment of a sentencing council”.^[373]

This approach is regrettable, as the discussion above suggests that sentencing councils can play a significant role in making reliable and comprehensive data available, as well as performing a wider role in engaging with and informing the public about sentencing practices. Furthermore, the initial proposed cost of the Council was less than a third that of the proposed database.

In relation to the second question, on 25 June 2012, Rattenbury asked the Attorney-General whether the data would “be made available, either in its entirety or in summarised form, to... interested members of the public”.^[374] The Attorney-General responded that “[e]xactly who will have access to the ACT’s sentencing database will be determined following discussions with the NSW Judicial Commission and the work to develop the detail of the system”.^[375]

The proposed database is to be modelled on the NSW Judicial Commission’s Sentencing Information System and developed in collaboration with the NSW Judicial Commission. The Attorney-General noted that, in NSW, the database is provided to a range of stakeholders, such as the courts, prosecution services, legal aid agencies, and relevant government departments, as well as “some University libraries”, adding that “if people outside of these categories wish to access the NSW [database] — such as defence barristers... they can approach the New South Wales Judicial Commission and pay the annual subscription fee”.^[376] More recently, the Attorney-General indicated that “the database would be available to both criminal justice stakeholders and the community”, but “no decision had been made on whether an annual subscription fee would be charged”.^[377] As noted above, subscription fees comparable to those currently charged in NSW would likely preclude widespread public uptake.

Although the proposed sentencing database is a welcome addition to the ACT sentencing landscape, and will doubtless answer many questions for judicial officers and policymakers about sentencing practices, it is arguably an incomplete response. Given the significant cost of the database, it would be highly desirable to provide free access to the public more broadly, as well as members of the media, in order to inform public discourse. Perhaps the current review of the ACT quarterly sentencing statistics is an attempt to ameliorate concerns about the limited utility of the present data publicly available, especially the questions ‘How useful is the data set currently in the Profile?’, ‘Could the data in the Profile be better presented? If so, how?’ and ‘What analysis could enhance the presentation of the information contained in the Profile?’

However, as discussed above, the role of sentencing councils goes beyond the mere recitation of sentencing data. If the creation of a sentencing database is to be regarded as fulfilling the Government’s policy of improving sentencing practices, then a more interactive model is desirable. In fact, the decision to spend over $2 million on a sentencing database appears to represent something of a missed opportunity in terms of giving the public bang for its sentencing buck. Ideally, the ACT public should have free access to sentencing data and a council which can disseminate and contextualise this information.