What are Other Jurisdictions Doing? Sentencing Data and Councils around Australia

National sentencing data

Since 1995, the Australian Bureau of Statistics (ABS) has published an annual report, Criminal Courts, Australia. The most recent iteration (at the time of writing), for the 2010-11 financial year, was released in February 2012, and includes sentencing data for the higher courts (Supreme and, as relevant, DistrictZCounty Courts), as well as the Magistrates and Children’s Courts.^[269] The following national data are available:

• offence type (eg acts intended to cause injury) by sentence type (custody in a correctional institution; custody in the community; fully suspended sentence; community supervision/work orders; monetary orders; other non-custodial orders);^[270]

• annual trend data on the number of custodial orders and non­custodial orders (since 2005-6 for the Supreme and Magistrates Court and since 2006-7 for the Children’s Court);^[271]

• annual trend data on custodial and non-custodial orders by offence type;^[272] and

• sentence type by age and gender of the offender.^[273]

The following data are also available at the jurisdictional level:

• the number of custodial and non-custodial orders;^[274] and

• annual trend data on sentence type.^[275]

Data are also presented on the number of custodial and non-custodial orders for Indigenous and non-Indigenous offenders in some jurisdictions.^[276] Additional data are available in excel spreadsheets on the ABS website (for example, the median and mean length of custodial sentence by offence type for each jurisdiction).^[277]

It is arguably doubtful that many members of the public will access these data in their current form.

Commonwealth

Commonwealth sentencing data are available on the Commonwealth Sentencing Database,^[279] which is produced by the National Judicial College of Australia, the Commonwealth Director of Public Prosecutions and the Judicial Commission of New South Wales. It is not available to the public, although members of the public may request a free password for access.

The establishment of a federal sentencing council was first proposed in 1980, as part of the ALRC’s first major review of federal sentencing.^[280] In its final report for that inquiry, the ALRC recommended that the council be part of the Australian Institute of Criminology (AIC) and that its functions include providing information on a systematic basis to the public through its own publications and through the mass media.^[281] However, in its 2006 report, the ALRC recommended against the establishment of a federal sentencing council, on the basis that it would replicate work currently being undertaken by other agencies or that would be undertaken by proposed agencies.^[282]

New South Wales

As Freiberg and Krasnostein have noted, NSW “has one of the oldest and most comprehensive sentencing databases, known as the Judicial Information Research System (JIRS)”.^[283] When the then Attorney-General, Bob Debus, commented on the establishment of the NSW Sentencing Council, he noted that “in New South Wales the government and public have access to the best sentencing statistical information in Australia, and arguably the world”.^[284] The JIRS sentencing data are very detailed, but are not freely available to the public. Indeed, given that annual subscription fees for the NSW database range from $1600 to $3400,28 it is highly doubtful that many, if any, members of the public would choose to inform themselves using this option.

Sentencing information is also available from the NSW Bureau of Crime Statistics and Research (BOCSAR), whose website (as at September 2012) lists 34 publications on sentencing published since 1990, including eight “sentencing snapshots” on common offences such as robbery and assault, published in 2011.^{[285] [286] Detailed information on sentencing outcomes in the higher courts, Magistrates Court and Children’s Court is also available in its annual criminal court report.[287] Finally, some data on individual cases are available on the NSW Public Defenders website. Sentencing tables “intended as a guide only” are provided for 13 key offences, including drugs offences, murder and sexual offences.[288]}

Australia’s first sentencing council was established in NSW in 2003, at which time its functions included:

(c) to monitor and to report annually to the Minister on, sentencing trends and practices, including the operation of standard non-parole periods and guideline judgments; and

(d) at the request of the Minister, to prepare research papers or reports on particular subjects in connection with sentencing.^[289]

The Attorney-General at the time stated:

It is hoped that the Sentencing Council’s collective experience, expertise, independence and ability to consult with others will contribute to the strengthening of public acceptance and understanding of the sentencing process, and the maintenance of public confidence in that process.^[290]

In 2006, the legislation was amended by the Crimes and Courts Legislation Amendment Act 2006 (NSW) to include as one of the functions of the Council to “educate the public about sentencing matters”,^[291] thereby “foreshadowing a more proactive role in disseminating sentencing information to the general public”.^[292] The Council’s website states that it is

dedicated to strengthening public understanding and confidence in the sentencing process.

The inaugural Chair, Alan Abadee, argued that it was “of considerable importance that some body exists to not only gauge informed public opinion but also to participate in its creation”.^[294] As at March 2013, the Council’s website listed 29 publications, including seven annual reports on sentencing trends and practices, although the most recent of these was released in 2009-10.

Victoria

In Victoria, sentencing data are primarily disseminated by the Victorian Sentencing Advisory Council (VSAC). The Judicial College of Victoria also publishes a sentencing manual,^[295] which includes sentencing statistics, although most of these were being updated at the time of writing.

The VSAC was established by the Sentencing (Amendment) Act 2003 (Vic), with its functions from the outset including:

(b) to provide statistical information on sentencing, including information on current sentencing practices, to members of the judiciary and other interested persons;

(c) to conduct research, and disseminate information to members of the judiciary and other interested persons, on sentencing matters;

(d) to gauge public opinion on sentencing matters;

(e) to consult, on sentencing matters, with government departments and interested persons and bodies as well as the general public (emphases added).^[296]

Perhaps unsurprisingly, the inaugural VSAC Chair, Professor Arie Freiberg, has described the Council in laudatory terms as “an innovative organisation performing the functions of a specialised law reform commission, bureau of statistics, sentencing guidelines panel and public education body combined”.^[297] These roles obviously overlap and are relevant in the context of ACT sentencing developments discussed below.

Freiberg noted that during debate on the legislation to introduce the VSAC, “the major concerns that were expressed related to the paucity of sentencing statistics in Victoria and the role of the Council in producing them”.^[298] In response to this, Freiberg went on to explain that “[e]arly in its life the Council agreed to a summary statement of its aim, as being ‘to bridge the gap between the community, the courts and government by informing, educating and advising on sentencing issues’”.^[299] Crucially, the VSAC’s role in terms of providing information “is not to produce statistical sentencing data but to provide sentencing information”, which is intended to:

1.

2. inform its own research into sentencing trends and issues;

3. provide greater transparency of the judicial and correctional processes; and

4. provide a basis for sociological critique or research into potential law reform.^[300]

Clearly, such objectives go far beyond the mere provision of sentencing tables which, to the untrained eye, may yield little in terms of better understanding the sentencing process. Instead, the information on the VSAC’s website “provides information about sentencing in Victoria in a simple, structured and accessible manner as well as providing its publications free of charge”.^[301]

The VSAC also created a virtual “You Be the Judge” exercise,^[302] which seeks to improve “participants’ understanding of the sentencing process and its complexities”, and includes a “Socratic discussion... supported by written materials. examin[ing] the factors that a must consider when imposing a sentence and the difficulties in reconciling the various needs of the State, the defendant, and the victim”,^[303] which has been used repeatedly in community education contexts. Impressively, this function attracted over 7200 visitors in 2011-12 alone.^[304] In addition, the VSAC delivered “You Be the Judge” sessions to 35 groups and gave presentations to more than 1100 participants in the 2011-12 year.^[305]

In a 2008 evaluation, the Council was found to have undertaken 16 public education sessions involving over 1100 individuals and have distributed 780 teacher guides.^[306] The evaluation also found that “[m]embers of the community are accessing SAC material in written and downloadable form”^[307] and “[p]articipants in public education programs are thought to have improved their understanding of sentencing matters as a result of their participation”.^[308] In addition, it was found that “[m]edia commentators have made extensive use of their access to SAC statistical and other publications.

represents a best practice approach to sentencing law reform in relation to its consultation processes; quality of reports; accessibility; public education programs; lack of bias; diverse membership; high quality staff and chair; independence from government and judiciary; capacity to generate its own research and the provision of a voice for the community in the sentencing process.^[310]

In October 2012, the VSAC released its annual report for the 2011-12 year, which strongly supports the ongoing and increasing relevance of the Council’s work. In particular, there were 65000 visits to its website, a 32 percent increase on the previous year.^[311] As at October 2012, the Council had disseminated over 120 publications, including guides for high school legal studies. The VSAC also recently released SACStat, an online tool providing sentencing data for 430 offences dealt with in the Magistrates Court. As evidence of the intended user-friendliness of the facility, it is “readily accessible on tablet devices and smart phones operating over 3G networks”.^[312] In a media release on 13 November 2012, Freiberg stated: “the public has the right to know what the courts are doing. Sentencing is not just for judges”. He also stressed that “[p]roviding sentencing data is... a vital way to promote consistency and transparency in sentencing”.^[313]

Queensland

The Queensland Sentencing Information Services (QSIS), a database modelled upon the NSW sentencing system, JIRS, was established in Queensland in 2007. Unfortunately, it is only available to the court and to legal practitioners specialising in criminal law.^{[314] [315] As discussed further below, the Queensland Sentencing Advisory Council (QSAC) was recently disbanded. Most of its publications are no longer accessible to the public, but a 2011 report called Sentencing Profile: Queensland Court Outcomes 2006-1055, remains available on the Queensland Department of Justice website and includes a socio-demographic profile of sentenced defendants (gender, Indigenous status and age), as well as data on sentencing outcomes in the Magistrates, District and Supreme Court.}

In February 2010, the former Queensland Government announced its intention to establish the QSAC.^[316] The Council’s mission was listed as “inform, engage, advise” and its functions included “publish[ing] information that improves the community’s knowledge and understanding of sentencing in Queensland”.^[317] The introduction of the QSAC reportedly had the support of the then Opposition, which “sa[id] it should have been done a long time ago”.^[318] It was therefore surprising that the Liberal Government decided to abolish the QSAC shortly after coming to power in March 2012.^[319] A spokesperson for the Attorney-General was quoted as saying that it “really duplicated the statutory functions that were being provided by the Queensland Law Reform Commission”.^[320] However, a brief examination of the 69 reports, 69 working papers and 42 miscellaneous papers published by that organisation between 1969 and 2011 indicated that none of them considered the issue of sentencing in detail.^[321]

The decision to abolish the QSAC was criticised by the President of the Queensland Law Society, Dr John de Groot, who argued that “Queenslanders greatly benefit[ted] from the public education service provided, including newsletters and presentations”. He described the Council as a “useful channel for Queenslanders to be informed on sentencing trends” and an

important public organ that serves essential public functions, in particular, the provision of information to the community to enhance knowledge and understanding of matters relating to sentencing; the publication of information relating to sentencing; the research of matters relating to sentencing; and publication of the research results.^[322]

South Australia

Some sentencing data are available on the website of the South Australian Office of Crime Statistics and Research (OCSAR). In 2011, OCSAR released Crime and Justice in South Australia 2007, Adult Courts and Corrections, which includes detailed information on sentencing outcomes in the Magistrates and higher courts, including the average length of sentence and non-parole period for custodial orders.^[323] The data are sufficiently detailed to enable analysis, but somewhat out of date.

In February 2012, the South Australian Attorney-General “announced a new advisory group for criminal sentencing”.^[324] As at October 2012, however, the only mention of the proposed Council on the Attorney­General’s website was an undated entry in the “2011 news archive”. Headed “Call for expressions of interest for membership to the Sentencing Council of South Australia”, the entry stated that the council would be an “advisory body of part-time members established to improve the quality and availability of information on sentencing in South Australia”.^[325] The proposed functions of the Council will reportedly include “publishing information relating to sentencing and conducting research on sentencing trends”.^[326] More recent information indicated that the Council would “assist in bridging a gap between the courts and the community... aim[ing] to strengthen public understanding of the sentencing process and by doing so enhanc[ing] confidence in the criminal justice system”.^[327]

Western Australia

Sentencing data for the period 2006-2010 are available on the website of the Western Australian Department of Attorney-General.^[328] As Freiberg and Krasnostein have noted, “[t]he statistics are framed broadly, giving information in relation to sentence types in the Magistrates, District and Supreme Courts as well as in relation to the Children’s Court and Indigenous offenders”.^[329] In addition, the Crime Research Centre, based at the University of Western Australia, describes itself as “a major and innovative contributor to the collection and analysis of statistical data on crime in Western Australia”.^[330] Unfortunately, the information contained on the site appears to be rather dated, with the most recent sentencing data relating to 2006.^[331]

Tasmania

The Tasmanian Sentencing Advisory Council was established in 2010. Its stated aims and functions include:

• improving the quality and availability of information on sentencing in Tasmania;

• undertaking research on sentencing;

• better informing the public on crime and sentencing issues; and

• gauging public opinion on sentencing matters.^[332]

At the time of writing, the Council was “in the process of setting up a database of sentencing practices in Tasmania”. The database will reportedly “improve the availability and usability of sentencing practices and will also be used to support judicial decision making, research and policy making”.^[333] It is not yet clear, however, whether the database will be available to members of the public.

Northern Territory

There is some limited information on sentencing outcomes available on the Northern Territory Department of Justice website.^[334] The data from the March 2011 quarter set out sentencing outcomes for specified drug and aggravated property offences,^[335] but more recent data appear to focus on the number and rates of different offence types, rather than sentencing outcomes.

The establishment of a sentencing council in the Northern Territory was announced in August 2011.^[336] It was suggested that the proposed Council would be “an advisory body, to better inform Government about sentencing trends”.^[337] The Council would be “charged with researching sentencing data, trends and community perceptions” and would “provide an important link between the courts, legislature and the community on areas of potential sentencing reform”.^[338] However, it is not clear to what extent it was intended that the role of the Council include informing the public (as opposed to informing the Government about the public’s perceptions). There does not appear to be any further information about the (proposed) Council available and it is not clear whether the introduction of such a body accords with the policy of the recently elected Country Liberal Party.