It's fine for the community to give general guidance to judges as to what is "reasonable" in sentencing, CLA says: public discussion on such issues would be useful, and may help judges locally and nationally, CLA told the main ACT political parties. But law makers should not boost maximum potential sentences to try to force judges to send people to jail for longer...and mandatory sentencing should not even be contemplated, we told MPs.

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Mr Simon Corbell, Labor
Ms Vicki Dunne, Liberal
Mr Shane Rattenbury, Greens

Dear All

Thank you for asking Civil Liberties Australia, in various ways, for comments on the Crimes (Penalties) Amendment Bill 2011 and other, similar legislative initiatives recently, with the proposed laws envisaging extended sentences for offences in the ACT.

We understand the rationale behind the three separate approaches to the generic issue. Basically, it is to align “average” sentences more closely with what is perceived as “reasonable” public expectations. We are not unsympathetic to change which would achieve such an outcome, if the “average” sentences, like for like, lined up more closely with sentences for “equal” offences in other Australian jurisdictions.

CLA strongly believes there should be a national inquiry into a number of aspects of the legal system: we seek your support for such an inquiry/reform into bail provisions, offences/penalties around drugs (including forfeiture laws) and parole (including how parole provisions/boards operate).

Returning to the ACT issue at hand, any sentence reform should be evidence-based, drawing on statistics and studies over a considerable period of time. We are concerned that draft bills appear to be a rather over-speedy responses to one-off situations, and to be incident-based, rather than evidence-based. We would urge restraint, a slower process to achieve a more robust resolution, and a fuller and longer analysis before legislation is enacted. For example, we recommend a referral to the Law Reform Advisory Council (LRAC) for evaluation and report: if the LRAC is fully occupied, then a similar ad-hoc group could be formed for this issue (we would be happy to contribute to suggesting, from amongst our members, some participants).

Without an evidenced-based approach, any new legislation may err at the other end of the scale, imposing maximum periods which are excessive.

We are aware that individual sentences handed down in the ACT recently have raised concerns and started the current moves for legislative change. Even though the maximum penalty available was for one culpable driving charge was many years, an offender was sentenced to no time in jail at all, though there were issues of drunkeness, speeding and negligence as well as a history of traffic offences.

But, rather than calling for longer sentence options, this case could be just as easily be interpreted as proving that the law itself is not the problem. Perhaps the way in which judges exercise their discretion should be the focus of the parliamentary and public discussion and debate (including within the LRAC), and not what the maximum penalties are. In the case mentioned, even if the maximum sentence in future was 14 years (double what it was in the pertinent case), it is to be presumed that the judge would hand down a similar non-custodial sentence.

Apart from the LRAC process, aligning judicial sentencing with “reasonable” public expectations would seem to CLA to lend itself to a public process of open debate to which people with a very wide range of perspectives could contribute. Perhaps the ACT Legislative Assembly could facilitate and fund a 1-2 day event as part of a longer reform process. CLA would be please to take part.  Such a conference could provide a useful lead to other jurisdictions, who may well care to send representatives.  Indeed, SCAG* may be willing to fund such a conference from ‘proceeds of crime’ legislation.

If the mis-match of sentencing by the judiciary c.f. “reasonable” public expectations is indeed the problem – which CLA believes to be the case – then the way forward we have suggested could lead to alleviating discontent across a range of offences, not just those related to culpable driving and allied crimes.  If the problem is judges not imposing heavy enough sentences, then increasing length of any potential sentence will have no effect whatsoever on the outcome. It would certainly not, of itself, lead to more custodial sentencing, for longer periods.

As a final point, CLA would like to stress our absolute abhorrence of any mandatory sentencing. Judicial discretion must be retained: however, from time to time, judicial guidance from the community as to what is “reasonable” would be as helpful to judges, we suggest, as it would be to the Parliament and its Members.

Yours sincerely,

Kristine Klugman
President

17 August 2011

* SCAG: Standing Committee of Attorneys-General