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Spigelman, James --- "The Power of Twelve: a New Way to Sentence for Serious Crime" [2005] ALRCRefJl 13; (2005) 86 Australian Law Reform Commission Reform Journal 51


Reform Issue 86 Winter 2005

This article appeared on pages 51 – 55 of the original journal.

The power of twelve: A new way to sentence for serious crime

By James Spigelman*

The Analects of Confucius record the Master saying that there were three matters that are essential for government: weapons, food and the trust of the people.1

Of the three, he said, trust was the most important. The significance of public confidence in the administration of justice is a manifestation of this fundamental proposition.

Over recent years there have been frequent expressions of concern about what many detect to be a decline in the level of public trust in governmental institutions. The importance of the maintenance of trust has been emphasised in the course of this debate.2

The level of trust in our society is a form of social capital which, as has increasingly come to be recognised, is as important as physical capital for the effective and efficient operation of our economy and society. Social capital includes the institutions that are the fundamental bases for all forms of social interaction. It extends to the values and rules for social conduct, including the acceptance of civic duties and responsibilities.3 Social capital, like other forms of capital, is subject to a process of depreciation and requires continuing investment to replenish the capital base. The administration of justice does not differ from other spheres of public conduct in this respect.

Many aspects of the operation of our system including the appointment, training and conduct of judges and the participation of legal practitioners—as members of a profession not merely as persons conducting a business—all contain elements of investment, replenishing the social capital deeply embedded in our legal system. Participation by members of the public in the administration of justice, as parties or as witnesses, constitutes—although their perspectives may be partial—a mechanism for ensuring that trust in the administration of justice remains at a high level.

The jury system

There is, however, a specific institution which, in my opinion, is of fundamental importance in maintaining public confidence. I refer to the jury system. The direct involvement as decision makers of members of the public, in their capacity as such, does more to ensure the maintenance of a high level of trust and confidence in the administration of justice than, perhaps, any other single factor.

Decision making by jurors is not, of course, the cheapest form of dispute resolution. Nor, however, is democracy the cheapest form of government. The pressure on public expenditure over recent decades is one of the reasons why the use of juries has progressively retreated and, in this state, has almost disappeared in civil matters. There is, however, no real doubt that the jury will be retained as the critical decision-making body which imposes the stigma of guilt of a serious crime, leading to the penal consequences of such guilt, on any citizen.

It is sometimes suggested that judges do not trust juries. Nothing could be further from the truth. I do not know a trial judge who does not have the highest degree of respect for the deliberations of the jury. Although there are occasions when doubts have been expressed about the results of jury deliberations, the overwhelming majority of comments that I have heard from judges over the years is praise for the diligence, efficiency and accuracy of jury deliberations.

The role of jurors as representatives of the community is a well understood and longstanding tradition. A jury does not represent the community in the sense of constituting, in some way, a microcosm of the community. That would be impossible. It represents the community by reason of the random process of its selection.

Selection by lot

We have become accustomed over recent centuries to representatives being chosen by election. However, selection by lot is, notwithstanding what appears to be an element of chance, a fundamentally rational process with a long and honourable tradition. In ancient Greece, legislators were selected by lot, albeit from a narrow base. Similarly, in Renaissance Venice and Florence selection by lot was used, sometimes through a sequence of steps, to chose executive decision makers.

Such a selection process has two distinct advantages. First, it operates on the principle that all the persons eligible to be selected are fundamentally equal and that, in the relevant circumstances, it is invidious to say that one person is more qualified than another. Secondly, particularly in the complicated Venetian series of steps, selection by lot prevents corruption of the system, whether directly through bribery or indirectly by the relevant decision maker feeling obliged to tailor his or her decisions to the wishes and interests of those who are responsible for the selection.

From time to time there are calls for more widespread use of selection by lot.4 The jury is continually referred to as one of the great continuing examples of the rationality of selection by lot. The jury is a profoundly democratic and egalitarian institution. That element lies at the heart of the acceptance by the community of the outcome of our criminal processes.

All of us understand the extent to which chance determines our fate, perhaps victims of crime and criminals more than most. The greater the extent to which one person or group may be seen to determine the outcome by deciding who makes the decision, the greater the prospect that a sense of unfairness can arise. All of us seem prepared to put up with the outcome of chance in circumstances where a process of deliberate selection could be regarded as unfair, whether justifiably or not. Those who have their expectations disappointed by reason of a random decision-making process, it appears, accept the outcome to a degree that rational argument could not convince them to accept.

The magic of the jury is reflected in the choice of number. Traditionally, as is still the case in criminal juries, that number is 12.5 So important is the number 12 that, like 20 with the word ‘score’, it is one of the few numbers that has its own second name, that is, a dozen.

For the superstitious minds of the population during the era that the number 12 was fixed upon as the size of the jury, that number had special connotations: in the Old Testament there were 12 patriarchs and 12 minor prophets; Israel was divided into 12 tribes; in the New Testament there were 12 apostles who would sit on 12 thrones to judge in the afterlife; the calendar was divided into 12 months, even though the solar year is closer to 13 lunar cycles; the day was divided into two 12 hour periods; there were 12 pence in a shilling; dozens were frequently referred to and 12 twelves made a gross.

A group of 12 is large enough to represent a diversity of views but not so large as to be impractical. The surrounding odd numbers, both 11 and 13, acquired supernatural or superstitious connotations. There is no mathematical reason for the triumph of the decimal system. That, no doubt, arose from the number of fingers on two hands.

Public confidence

Over recent years, I have been increasingly concerned that public confidence in the administration of justice and public respect for the judiciary is diminished by reason of ignorance about what judges actually do, particularly, in terms of criminal sentences that are imposed. Sentencing engages the interest, and sometimes the passion, of the public at large more than anything else judges do. The public attitude to the way that judges impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice.

Plainly there are occasions when a particular sentence attracts criticism and that criticism is reasonably based. What concerns me is that such cases appear to be widely regarded as typical, when they are not.

There is a considerable body of research that indicates that, with respect to crime, there is a significant disparity between what actually happens and what the majority of the public believes happens. Furthermore, research in many nations, including Australia, has shown that when the full facts of particular cases are explained the public tends to support the sentences actually imposed by judicial officers. Research with juries, who are the members of the public that have particular knowledge of the circumstances of an offence, support judicial sentences. Such research indicates that about the same proportion thinks the sentence was too severe as the proportion which thinks the sentence was too lenient.6 It would be a useful antidote to some of the publicity that attends sentencing decisions for research of this character to be replicated in New South Wales.

Obviously sentencing is a task on which a spectrum of opinion is permissible and, indeed, to be expected. It must be recognised that the range of permissible judicial discretion is narrower than the range of actual public opinion. For that reason, the outcome of a judicial sentencing task will, necessarily, not be acceptable to some segment of public opinion. Two factors do not receive the recognition they deserve. First, judges operate within legal constraints that do not permit decisions at either extremity of public opinion. Second, in terms of publication in the mass media, the public receives only part of the story.

Judges must obey the law and there are legal constraints on sentencing outcomes. A judge cannot impose a sentence on the basis of retribution alone. By law a judge must take into account the circumstances of the offender, as well as of the offence. Issues of rehabilitation, for example, must be considered by law. Retribution is not the only factor required to be considered.

The media has an understandable focus on high profile cases and controversy. What judges do on a day-to-day basis in the normal line of cases simply is not news—nor is it ever likely to be. I do not suggest that such reporting is wrong. A mass media outlet must appeal to a broad public. There remains a task for all of us who are engaged in the administration of justice to attempt to educate the public about the actual levels of sentences imposed.

The effect of selective media reporting is not only a matter affecting public confidence in the administration of justice, important as that is. It actually impedes the administration of justice. A key objective of criminal sentencing is, of course, deterrence. For deterrence to work potential offenders must have an understanding of the likely consequences of criminal conduct. If, as I believe is the case, media reporting gives excessive emphasis to light sentences and gives the impression that such sentencing is typical, when it is not, then deterrence will not work. Let me put it in headline form: ‘Media Bias Causes Crime Wave’. There is, however, as much point in complaining about selective media reporting as there is in complaining about the weather.

The maintenance of public confidence in the judiciary requires the administration of justice to appeal directly to the public. The best way of doing so is through the jury system. I wish to put forward an idea in which jurors can come to play a role in the sentencing process, with a view to enhancing public confidence in it.

A new way forward

What I have in mind is the development of a system in which judges consult with juries about sentencing. There was a tradition in the United States that many states had juries that actually imposed sentences. Now, only half a dozen states continue that tradition, although there have been recent calls for its return.7 I am not suggesting anything of that character here. The scope of relevant considerations is such that sentencing requires the synthesis of a range of incommensurable factors. This cannot be done by a group, without an undesirable process of compromise. Ultimately, an experienced criminal judge must decide, often quite instinctively, where the balance should lie.

What I am proposing is an in camera consultation process, protected by secrecy provisions, by which the trial judge discusses relevant issues with the jury after evidence and submissions on sentence and prior to determining sentence.

I do not put forward this proposal as a means of increasing the level of sentences. Generally, I do not believe that it will have that effect. Nevertheless, such a basic change in procedure can have unexpected effects. The available research concludes, as I have said, that jurors generally accept the appropriateness of sentences imposed in those cases on which they sat. I have come to the view that a process of consultation can improve both the jury decision-making process and the judicial sentencing process, as well as enhancing public confidence in the administration of criminal justice. Jurors are interested in what happens. Indeed, many turn up for the sentencing.

I have not myself been a criminal trial judge. However, those with whom I have spoken all emphasise the considerable difficulty and loneliness involved in the sentencing exercise. Consultation with judicial colleagues is possible, but many of the matters that arise for determination in the sentencing process are such that, in my opinion, judges would welcome assistance from a spectrum of opinion reflecting a diversity of experience.

The range of conflicting elements that must be taken into account in the sentencing exercise involve the full range of human relationships and human conflicts. For example, judgments must be made about the prospects of re-offending, the chances of rehabilitation, the actual gravity of conduct involved, for example, in cases of euthanasia. In these and other such respects I believe the sentencing process could be improved by a judge being able to draw on a broader range of experience.

Furthermore, there are occasions when the judge has to make assumptions about the jury’s reasoning process. For example, in a manslaughter case it is necessary for the judge to make a finding beyond a reasonable doubt as to the basis on which a conviction of manslaughter rather than murder was entered. Was it based on the defence of provocation or on the basis of an unlawful and dangerous act or was there some element of mental impairment? If the last, then the sentencing task must proceed on the basis that death was not intentional. Whilst it is true that the jury does not have to be unanimous as to the basis on which a charge of murder is reduced to manslaughter, it will assist the sentencing exercise for the judge to understand why the verdict was as it was.

As we have seen from recent experience in this state, the jury decision-making process can go wrong.8 It is quite likely that, if there has been some fundamental defect, the trial judge will discover it during the course of consulting with the jury about sentence. I do not think that is a bad thing. The process could lead to a report for the purposes of the Court of Criminal Appeal. Such a report could also include information about the significance, or lack of significance, of any error on the jury’s decision-making process. This could assist an appeal court to refuse an appeal on the basis of some technical breach, by the application of the proviso.

There are difficult issues which arise whenever a system is established which may intrude into the secrecy of the jury deliberation process. The present secrecy rule protects the jury and remains fundamental to our system. Sometimes, however, the rule is subject to criticism on the basis that it may conceal miscarriages of justice. This has frequently led to difficult decisions in the courts.9 Senior judges have suggested that the immunity from scrutiny of the jury will in the long run affect public confidence in the jury system.10 The legislative scheme for the implementation of my proposal, if it were to be adopted, would have to carefully regulate the conflicting principles involved. These are matters that require careful investigation in order to ensure that the appropriate balance is maintained.

Investigation needed

I put forward this proposal tentatively. It requires detailed working out, perhaps by means of a reference to the New South Wales Law Reform Commission. It is not possible to predict all the ramifications of such a significant change. Legislation should authorise the adoption of the system at first on a trial basis. This is what occurred a few years ago with a system of Sentence Indication Hearings, which looked good on paper but which was eventually abandoned.

I should note that the proposal has resource implications. It will not work without additional resources. It will require the recall of such proportion of the jury as is able to return to hear the evidence on sentencing. One of the factors which delays the outcome of criminal trials in this state is the fact that the Probation and Parole Service requires a period of six weeks after verdict before it can provide the information about the offender that is required for the sentencing task. Further delays arise because of availability of counsel. It is undesirable for a jury to wait for a long period before being recalled for a process of consultation about sentencing. Additional resources are required to ensure that such a process can be carried into effect in a timely manner.

I am conscious of the fact that the overwhelming majority of sentences imposed in this state do not involve juries. Not only are many criminal offences dealt with in the Local Court, but a substantial majority of sentences in the District Court occur after guilty pleas. It is not appropriate or desirable to create some kind of artificial jury composed of persons who have not had to decide the critical question of guilt. A jury that has had to turn its collective mind to the determination of guilt has had to focus in a direct, and not merely advisory way, on elements critical to the sentencing task. This focus cannot be artificially created.

I put forward this proposal in a tentative manner realising that there are many details that require to be worked out and also with the diffidence appropriate for a novel proposal. Nevertheless, I am of the view, after a limited process of consultation with others more experienced in the criminal jurisdiction than myself, many of whom have real reservations about its implications, that this idea offers real prospects of improving the quality of sentence decision making in this state and enhancing public confidence in the administration of criminal justice. As far as I am aware, no such system exists anywhere else. It is, in my opinion, worth a trial.

* The Hon Justice JJ Spigelman is the Chief Justice of the Supreme Court of New South Wales.

This article is an edited version of his speech to the opening of the NSW Law Term Dinner in January 2005.

Endnotes

1. See The Analects of Confucius translation by S Leys (1997) para 12.7.

2. See, eg, F Fukuyama, Trust: The Social Virtues and the Creation of Prosperity (1995); O O’Niell, ‘The Question of Trust’ in The BBC Reith Lectures (2002); K O’Hara, Trust: From Socrates to Spin (2004).

3. See, eg, Productivity Commission, Social Capital: Reviewing the Concept and its Policy Implications (2003).

4. See, eg, B Manin, The Principles of Representative Government (1997), in particular Ch 1; A Ryan, ‘Do We Really Want Equality?’ (2000) 13 (624) New Statesman 51; N Duxbury, Random Justice: on Lotteries and Legal Decision Making (1999); B Chapman, ‘Chance Reason and the Rule of Law’ (2000) 50 University of Toronto LJ 259; W Hall, ‘Euro Scepticism: Greek and British’ (1999) 43 (5) Quadrant 40.

5. See C Rembar, The Law of the Land: The Evolution of Our Legal System (1980) 158-163.

6. See the references collected in JJ Spigelman, ‘Sentencing Guideline Judgments’ (1999) 73 ALJ 876, fn 23-28.

7. See A Lanni, ‘Jury Sentencing in Non Capital Cases: An Idea Whose Time Has Come (Again)?’ (1990) 108 Yale LJ 1775; M B Hoffman, ‘The Case for Jury Sentencing’ (2002– 2003) 52 Duke LJ 951; J Iontcheva, ‘Jury Sentencing as Democratic Practice’ (2003) 89 Virginia Law Review 311.

8. See, generally, V Bell, ‘How to Preserve the Integrity of Jury Trials in a Mass Media Age’ Supreme and Federal Courts Judges’ Conference (27 January 2005), <www.lawlink.nsw.gov.au/sc/sc.nsf/pages/bell_270105> at 4 April 2005.

9. See R v Minarowska (1995) 83 A Crim R 78; R v Mirza [2004] UKHL2; [2004] UKHL 2; [2004] 2 WLR 201.

10. R v Mirza [2004] UKHL 2 at [22] per Lord Steyn dissenting.


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