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Tuesday, 30 September 2014

CCOs replace suspended sentences, and more jail now an option

Community Correction Orders can now be imposed along with jail of up to 2 years, and as a substitute where previously suspended sentences of imprisonment might have been imposed.


Parts of the Sentencing Amendment (Emergency Workers) Act 2014 commenced operation yesterday — see SG 330/2014 — including Part 5.

Part 5 amends the Sentencing Act 1991, and answers some of the questions I posed a few weeks back when discussing the abolition of suspended sentences.

Can CCOs take the place of suspended sentences?


It seems the answer to this is now, “Yes!”

A new s 5(4C) provides:
(4C) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.
These conditions are, respectively:
  • non-association
  • residence restriction or exclusion
  • place or area restriction or exclusion
  • curfew
  • alcohol exclusion
The new s 36(2) goes even further, providing:
(2) Without limiting when a community correction order may be imposed, it may be an appropriate sentence where, before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended in whole that sentence of imprisonment.

This seems to address the dilemma where the established range for certain offences was jail, even if suspended, and jail was only an option where no other sentence would meet the purposes of sentencing in s 5(2) of the Sentencing Act. It begged the question, how could a court now impose something less than jail? It seems the simply answer is now, “Because the Parliament says so."

CCOs available in addition to up to 2 years’ jail


Section 44(1) and (1A) of the Sentencing Act now read:

(1) When sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.

(1A) When sentencing an offender in respect of one, or more than one, offence to which clause 5 of Schedule 1 applies, a court may make a community correction order in addition to imposing any sentence of imprisonment.

(The reference to Sch 1, cl 5 is to an arson offence.)

The explanatory memorandum points out that the 2-year-jail-plus-CCO option is available where a court fixes a non-parole period, because a court may fix a non-parole period for sentences between 12 and 24 months.

I believe part of the reason the Court of Appeal had not yet delivered any judgment in the possible first-ever guideline judgment, dealing with CCOs as an alternative for offences that would previously have receives suspended jail sentences, was in anticipation of the commencement of these provisions. I’m not certain how they might affect the interpretation of the law as it stood when those sentences were imposed, but my guess is that if the Court of Appeal is going to give a guideline judgment, it wants to say something about the current law as well, so it can provide useful guidance to sentencers for now.

Further changes?


Part 8 of the Justice Legislation Amendment (Confiscation and Other Matters) Bill 2014 proposes further tweaks to the Sentencing Act, which will allow for Magistrates’ Courts to impose CCOs for a cumulative maximum of 5 years in any one case — mirroring the current jurisdictional cumulative cap of 5 years’ jail.

The last sitting day scheduled for Parliament this year is 16 October 2014. Because the election then follows on 29 November, any Bills not passed will lapse, so this amendment may not become law, either this year or perhaps ever. Stay tuned!

Hat-tip to Jono Miller for the good oil on both of these Bills.

Monday, 1 September 2014

Suspended sentences gone

The last portions of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 commenced operation today. Section 2(5) of that Act provides:
(5) If a provision referred to in subsection (4) does not come into operation before 1 September 2014, it comes into operation on that day.
The most significant change is the abolition of suspended sentences of imprisonment.

The Act repeals Sentencing Act 1991 Part 3, Div 2, subdiv (3). This is the subdivision titled ‘Suspended sentences of imprisonment’, and which contained sections 27 and 29.

There are two relevant transitional provisions to bear in mind.

Section 149C (inserted by s 7 of the amending Act) provides that suspended sentences may still be imposed by higher courts for offences committed before or partly before suspended sentences were abolished in the higher courts from 1 September 2013.

Section 149D (inserted by s 22 of the amending Act) similarly provides suspended sentences may still be imposed by higher courts for offences committed before or partly before suspended sentences were abolished in all courts from 1 September 2014.

I discussed the amending Act back here, when the Bill was first introduced. (The changes were initially slated for 1 December 2013 and 2014, but brought forward when the Act was passed.)

It seems from the second reading speeches and the media announcements at the time that the government wants to restrict the meaning of ‘jail’ to sentences where the offender actually goes into custody.

Any other sentence where the offender walks out the front door of a court house won’t be called ‘jail’.

It’s not entirely clear if sentences that used to receive jail sentences that were then served by suspended sentence or, even earlier, by intensive corrections order now must receive immediate imprisonment, or can still receive another sentence, except that it won’t be labelled ‘jail’.

The Sentencing Advisory Council clearly thinks community corrections orders are a replacement for suspended sentences when a court thinks immediate imprisonment is unnecessary: see its CCO Monitoring Report Feb 2014 and also the Suspended Sentences and Intermediate Sentencing Orders Final Report Part 2 April 2008.

I think that’s consistent with what the Attorney-General said in the second reading speech I discussed in my earlier post.

But it’s not a view universally accepted by the Courts.

Part of the reason is probably because of the Sentencing Act itself, and the Courts doing their best to obey the Sentencing Act.

Section 5 of the Sentencing Act relevantly provides:
(3) A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
(4) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
The now-repealed s 27(1) used to provide (before the 2013 amendments commenced):
(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.
Section 27(1A) then listed the criteria for determining if a suspended sentence was appropriate.

And section 27(3) provided:
(3) A court must not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act.
These provisions produced the odd result that a Court had to conclude that nothing other than jail would achieve the purposes of sentencing necessary in the case, and yet, it was appropriate to not send the offender to jail.

Turning to my trusty Fox & Freiberg on Sentencing, I see that the Kirby J grappled with this in Dinsdale v The Queen (2000) 202 CLR 321 at [74], [76], [79] – [81].
[74] The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The “[c]onceptual [i]ncongruity” involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all. 
[76] Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified. 
[79] The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point … is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court with the responsibility of sentencing is “not quite certain what to do”. 
[80] The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend. 
[81] A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis.

Once the sentencing range for some offences was established as jail — even though it might sometimes be suspended — it became very difficult to suggest that it now ought not be jail. It seems to me this is the problem that comes about because of the current government’s desire to label only actual jail as jail. That’s not necessarily a bad thing, and seems to be a lot more logical and intellectually honest about what’s happening in the sentencing process. But it suggests that the effect of the change either wasn’t fully appreciated when the changes were made, or the government didn’t mind that it might mean more people go to jail. IMHO, that’s not a good thing. Jail really should be an option of last resort, rather than a default because there’s no other option permitted to the courts because of the way the legislation is structured. (No matter what your philosophical approach might be to jail, if the purpose of it is to stop people reoffending — whether because they are deterred, or rehabilitated — then it seems it’s not so effective. Combine that with the bad side effects of jail, and it’s worth asking if there should be an alternative in appropriate cases.)

I think the government did mean for CCOs to occupy some of the ground previously occupied by ICOs and suspended sentences, but because the legislation doesn’t say that in those precise terms, it’s open to argument.

Presumably, this would mean that a Court would have to consider the maximum sentence available for a CCO — say, 5 years for recklessly causing injury — and conclude that would still be inadequate before it could then go up the sentencing hierarchy to consider a jail sentence. But again, that’s open to argument as well.

It seems that some courts have accepted this might be the case. The Age reported last year that one offender received a 10-year CCO. But that case, and two others, are before the Court of Appeal after the DPP asked for the first ever guideline judgment in Victoria on the scope and limits of CCOs. I understand those cases were argued on 31 Jul and 1 Aug, and the Court has reserved its decision on whether it will give a guideline judgment, and if it does, what that judgment will be.

Hopefully the Court will provide a guideline judgment, because it seems this is an area ripe for such direction. And hopefully it will agree with the view of the Sentencing Advisory Council. With the abolition of suspended sentences, there is a real need for an intermediate sentencing option that allows for serious punishment without all the brutalising effects of jail. There are some offenders who really are terrified just at the thought of being before a Court, and who truly do suffer significant punishment and experience deterrence without being locked up. On the other hand, there are some offenders who do need to be locked up. Ideally, our justice system should allow out courts to adequately deal with both.

Monday, 5 May 2014

The new edition of Fox & Freiberg on Sentencing

The tools of trade for any advocate are their wits, their tongue, and their knowledge of the law. And none of us can know all the law, and so we often refer to primary and secondary sources.

Richard Fox and Arie Freiberg’s Sentencing: State and Federal Law in Victoria is one of those few secondary sources that is certainly recognised as an authority in its own right, and though not a primary source of law, is one that criminal advocates probably can’t do without. I managed to get one of the few copies remaining when Oxford University Press was running out the last of the second edition, published in 1999. It was still a good source for sentencing principles and policies, but changes to sentencing law had reduced its utility.

As an aside, I discovered a little while ago in a speech from Lord Neuberger that it turns out the “better read when dead” convention — which prohibited conferring the status of the status of authority on a published work until its authors were dead — is not correct, if it ever were. No doubt Arie Freiberg will be pleased to hear this.

So I was very pleased when last Thursday my ProView library updated to download the eBook version of the third edition of this tome, and my hardcopy arrived Friday.


The book or eBook on their own are $260; the two combined are $338. (Link here.) The work is current to October 2013 — I’ve already found legislative references that have been amended since then! — and significantly reworked to discuss the raft of ancillary orders that are made either at the sentencing stage or follow as a consequence of sentencing.

The eBook is excellent — you can see my review of ProView here — and set to display the same as the hardcopy, so there won’t be any confusion when referring to page numbers. However, the table of contents doesn’t have a great deal of depth. So for example, in Chapter 5 ‘General sentencing principles: nature of the offender’, the only contents entry is for the first paragraph, headed Nature of the offender.



The chapter runs for nearly 40 pages, and has about 15 sub-headings, yet none of those show in the table of contents. Tough luck if you want to jump to the last sub-heading emotional stress on page 373! I guess an electronic document like this can be updated, so hopefully we might see a fix to this.

My only other criticism so far is the index is fairly basic, and from what I’ve looked at so far, seems to only have one entry for any given item. A good index with lots of cross-referencing or multiple entries for the same material is an absolute boon. (It’s also a lot of hard work, and adds to the size and cost of a publication, so it always involves a balancing act.)

The other great benefit of the eBook version — something common to most ProView titles — is the ability to export parts of the work to PDF. I can export selected text — the most I can select is a single page; it doesn’t seem possible to select say two-and-a-half pages — or the current view, or a current table-of-contents section. (Which in chapter 5, going on my whinge above, would presently be the whole chapter.) It’s a great feature though, and I can see it being really handy when I want to include the relevant portion of Fox and Freiberg in any material I want to provide to the Bench.


Despite the couple of minor gripes I have, this is a significant update and a great addition to the library of any criminal advocate. It’s not exactly cheap, but well worth it for its authoritative discussion on sentencing law in Victoria, not to mention that it can save literally hours of research for the busy advocate. I reckon it’s a must-have for any criminal practitioner.

Thursday, 13 February 2014

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2: High Court modifies prosecutors duties at sentencing

“No” to prosecution submissions on sentencing range.


In 2008, the Victorian Court of Appeal decided in R v MacNeil-Brown (2008) 20 VR 677 (discussed here) that when asked, prosecutors were required to submit what the prosecution considered was an available range of sentences to impose on an offender, or if the prosecution thought the court would otherwise fall into error.

Even then, it was a 3-2 decision, and that divergence of views is reflected in daily practice in Victorian courts.

But the High Court put a stop to all that yesterday when it delivered its judgment in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2.

The majority said quite simply:
[23] To the extent to which MacNeil-Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled. The practice to which MacNeil-Brown has given rise should cease. The practice is wrong in principle.

Pasquale Barbaro and Saverio Zirilli pleaded guilty to various offences related to large-scale ecstasy importation and trafficking, after negotiations with the prosecution. Apparently, the prosecution considered that the sentencing range for Barbaro was 32 to 37 years (with a non-parole period of 24 to 28 years), and for Zirilli, 21 to 25 years (with a non-parole period of 16 to 19 years).

But that all came to nought at their sentencing hearing when the sentencing judge said she didn’t want to hear from the prosecution about a sentencing range.

Barbaro received a life sentence (non-parole period of 30 years) and Zirilli received 26 years (with a non-parole period of 18 years).

Both men asked to appeal to the High Court. They had two arguments.

First, plea agreements were made and the cases settled or resolved to pleas, because they expected the prosecution would advise the Court what it thought was the appropriate sentencing range.

Second, they were disadvantaged by not being able to rely on those submissions.

The majority dealt with that pretty swiftly:
[6] The applicants’ arguments depend on two flawed premises. The first is that the prosecution is permitted (or required) to submit to a sentencing judge its view of what are the bounds of the range of sentences which may be imposed on an offender. That premise, in turn, depends on the premise that such a submission is a submission of law. For the reasons which follow, each premise is wrong.
 They then went on to elaborate on that (see in particular [42] – [43]), and to lay down the law about who does what at the sentencing stage of proceedings.
[47] To describe the discussions between the prosecution and lawyers for the applicants as leading to plea agreements (or “settlement” of the matters) cannot obscure three fundamental propositions. First, it is for the prosecution, alone, to decide what charges are to be preferred against an accused person. Second, it is for the accused person, alone, to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender’s advisers can do anything more than proffer an opinion as to what might reasonably be expected to happen. Third, and of most immediate importance in these applications, it is for the sentencing judge, alone, to decide what sentence will be imposed.
The applicants’ allegations of unfairness depended upon giving the plea agreements and the prosecution’s expression of opinion about sentencing range relevance and importance that is not consistent with these principles. The prosecution decided what charges would be preferred against the applicants. The applicants decided whether to plead guilty to those charges. They did so in light of whatever advice they had from their own advisers and whatever weight they chose to give to the prosecution’s opinions. But they necessarily did so knowing that it was for the judge, alone, to decide what sentence would be passed upon them. (Citations omitted.)
One of the arguments against this might be that an offender doesn’t have much idea what sentence they might get if they plea to some or all offences, and they’re subject to the judge’s opinion about the proper sentence.

Once response to that is that that’s what happens: judges have the responsibility for making decisions about sentence. It’s a bit like going on a game show and being unsurprised that the announcer might call you at random to “come on down”, or not.

But the other point is in what the High Court said in the quote above: offenders will get advise from their lawyers about the sentence they might expect, but with the caveat that the judge will decide.

The other point to note is that the High Court was only denying a role for the prosecution to submit its views about the range. But it is still open to the prosecution and defence — and probably required as a matter of practice and good advocacy, if not a matter of law — to refer to comparable cases and relevant sentencing statistics.
[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
What this means is that the parties will now need to advance only the foundation for the opinion they might have once expressed, rather than the opinion (of the proper sentence length) itself.

One side effect of this might be a much more intense focus on the sentencing facts agreed between the parties, because they will now take on an even greater significance in sentencing proceedings. It could be that some cases run to trial simply because the parties can’t agree on that, or else, there might be an increase in contested sentencing hearings.