Australian Law Reform Commission - Reform Journal
Reform Issue 86 Winter 2005
This article appeared on pages 7 – 10 of the original journal.
Sentencing: Trends and issues
By Arie Freiberg*
That the sentencing process is contentious is not contentious. Opinions over individual sentences are often as divided as they are ill-informed.
In the public arena, sentencing is not regarded as a matter requiring expertise but rapid and uncritical responsiveness to communal opinion or emotion. Over the past few decades, sentencing has become more politically salient. It is not just a technical issue but one which goes to the heart of the credibility, if not the survival, of governments. The fact that the Australian Law Reform Commission (ALRC) has returned to this problem again within a relatively short period (for law reform commissions) highlights its sensitivity and complexity.
The sentencing process does not lack problems. These have been identified by academics, practitioners, the media and the public in Australia and abroad. Some of the problems are: the lack of a coherent sentencing rationale; the lack of sentencing information; disparity of sentencing; cost and delay; the role of discretion; the range of sentencing options and their use; the growing influence of the media and the role of public opinion; as well as the lack of evaluation of changes in sentencing policy.
In the late 1980s, sentencing consolidation was high on the political agenda. Following decades of criticism that the legislature had failed in its duty to provide courts with a rational and coherent legislative and policy framework for sentencing, major legislative reforms took place at federal and state levels, resulting in the Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1991 (Vic); Penalties and Sentences Act 1992 (Qld); Sentencing Act 1995 (NT); Sentencing Act 1995 and Sentence Administration Act 1995 (WA); Sentencing Act 1997 (Tas); the Crimes (Sentencing Procedure) Act 1999 and Crimes (Administration of Sentences) Act 1999 (NSW) and, most recently, the Crimes (Sentencing) Bill 2005, which has been introduced in the ACT Legislative Assembly.
In the following decade, sentencing took a markedly more punitive turn with the introduction of ‘three strikes’ legislation, mandatory minimum sentences, consecutive life sentences, boot camps, tougher enforcement of community sentences, increased maximum penalties, intensive supervision orders, home detention, electronic monitoring and the political disenfranchisement of offenders.
Under the influence of economic rationalism, rehabilitative models gave way to theories of personal responsibility and punishment. Fear of crime and dissatisfaction with the efficacy of sentencing practices led to the introduction, or re-introduction, of incapacitative measures such as three strikes legislation in the Northern Territory and Western Australia as well as indefinite sentences imposed at the time of conviction. Though rehabilitation is returning as a rationale, it is still considered problematic because of doubts over its efficacy and uncertain and fragile public support.
These trends are reflected in the rising prison populations in Australia, the UK and the USA. In this country between 1987 and 2003, the national prisoner population has increased by 48.4%. 21.8% of the prisoner population is Indigenous. Female prisoners comprise 6.5% of the total prisoner population and their numbers are increasing at a faster rate than male prisoners and have nearly doubled since 1991. The rate for Indigenous women is higher and they make up 25.6% of the population of women prisoners.
Crime rates provide only a partial explanation, although in some jurisdictions, serious violent crime has increased, but not to the same extent as prison populations. A more likely explanation for the growth in the prison population is the increasingly punitive response of the courts, which is possibly a response to changing community attitudes to crime and punishment. This is manifested in two ways: an increase in the ‘custody rate’ (that is, the total proportion of persons sentenced by the courts who receive a prison sentence), and an increase in sentence lengths.
There are other reasons why the imprisonment rates have increased. The advent of ‘truth in sentencing’ has seen the reduction in administrative influences on sentences such as remissions and leave, although in some jurisdictions sentence lengths have been adjusted to take this into account; parole eligibility has been tightened and parole boards have been more conservative in their release practices; and stringent legislative and administrative breach policies have left courts with less discretion when offenders return to court.
While politically popular, imprisonment is also expensive and concern over burgeoning prison populations has resulted in some jurisdictions prohibiting short prison sentences. Western Australia has prohibited courts from imposing sentences of under three months since 1996 and of under six months since 2004. The short-term aim of such provisions is to decrease the imprisonment rates but they also recognise that short-term sentences do little to promote rehabilitation.
The development of community based sanctions such as community work, attendance centres, periodic and home detention, intensive supervision and the like as possible alternatives to imprisonment were major issues in the 1960s and beyond. The high expectations that these orders would decrease imprisonment rates were never fulfilled, primarily because they were not true substitutes for imprisonment but provided a significant and proportionately punitive response to offences falling within the mid-range of seriousness for which imprisonment would not have been an option. These orders have become known more properly as intermediate sanctions or community orders rather than ‘alternatives’ to imprisonment.
Modern community corrections face a number of problems. At times they have not been supported because they lacked punitive weight and clear purposes. They did not provide sentencers with dispositions that made sense to them in terms of the seriousness of the offences that come before the courts and the background of offenders who commit those offences. They were not logical in that they did not relate to each other and other sanctions within the hierarchy and overlapped with other sanctions. Finally, they lacked credibility in that breach rates were high and the offenders were not supported by the services that the legislation mandated. All of these factors were exacerbated by the disillusionment with rehabilitation generally and the punitive climate which saw such sentences as being ‘soft on crime’—a political anathema.
The recent mood is more optimistic and over the past decade there has been a resurgence of interest in the field of offender rehabilitation. Increasingly, governments and courts are looking at what kinds of programs work with particular offenders. Research has been increasing in such areas as criminogenic needs, cognitive skills programs, specific programs for sexual offending, violent offending, drug and alcohol use, anger management and other therapeutic interventions.
The major innovations in the non-custodial field are now occurring at the lower end of the sentencing hierarchy where court and non-court diversion options are expanding and sentencing options are being conflated with bail dispositions.
Many sentencing reforms tend to be introduced following some public outcry or perceived crisis in confidence in the operation of the criminal justice system but others are the result of the more traditional processes of law reform.
Concerns about sentencing disparity—justifiable or not—judicial leniency and the failures of the criminal justice system to eliminate or reduce crime continue to agitate the public and animate politicians. Attacks on the judicial role in sentencing have led to calls for more—or better—judicial regulation through appellate review, Crown appeals, judicial training, sentencing manuals, guideline judgments, sentencing councils, comprehensive and up-to-date sentencing information systems, and guideline, presumptive or mandatory sentences.
All states have had systems of appellate review of sentencing for decades and, whether responding to public pressure or not, the number of Crown appeals has increased. Judicial training, both to neophyte and experienced judicial officers, has developed through the Australian Institute of Judicial Administration, the Judicial Commission of New South Wales and newer bodies such as the Judicial College of Victoria and the National Judicial College of Australia.
The closer control or guidance of judicial sentencing discretion has most recently developed through mechanisms such as guideline judgments, presumptive sentences, matrix sentencing, mandatory minimum sentences and mandatory sentences. Each represents an escalating degree of legislative intervention in the sentencing process.
A major recent concern has been over serious sexual offenders and repeat offenders. In the 1990s a number of jurisdictions introduced legislation aimed at extending the prison terms of serious sexual and violent offenders and creating a new indefinite sentence of imprisonment for serious sexual and violent offenders. More recently, the Queensland Parliament enacted the Dangerous Prisoners (Sexual Offenders) Act 2003, which permits the Attorney-General to apply to the Supreme Court during the last six months of a person’s sentence for an order that a serious sexual offender be detained indefinitely, if the court is satisfied that the prisoner is a serious danger to the community. This legislation has survived an attack on its constitutionality in the High Court.1
This Act is but one example of the growing trend to keep on-going control of offenders following the completion of their sentences through mechanisms such as the collection of DNA samples of prisoners, civil commitment laws and the requirement that sex offenders register with the police, who may then notify the community in which they live. Legislation preventing offenders who have previously been found guilty or convicted of certain offences from working in professions such as teaching is becoming increasingly popular. Some of these laws leave little or no discretion with the authorities to take into account the seriousness of the original offence, the circumstances of the offence or the person’s subsequent conduct.
The rise of the victims’ movement in the 1960s thrust the hitherto ‘forgotten party’ in crime into the justice arena through the provision of support services to victims of crime, such as state funded financial compensation, restitution and counselling services. Later, as the movement became more organised and conceptually coherent, victims’ views became institutionalised through mechanisms such as victim impact statements, victim representation on parole boards and other release authorities and victim/public registration and notification schemes.
Some states have enacted charters of victims’ rights. The most recent developments in respect of victims’ involvement allow them not only to receive information about the administration of an offender’s sentence of imprisonment, but to make oral or written submissions to parole boards when the offender is being considered for release.
Political and public concern regarding sentencing practices and the potential role of the public in the sentencing process has resulted in the establishment of Sentencing Advisory Councils in New South Wales and Victoria, partly modelled on a British model.
Growing dissatisfaction with the adversarial system as a means of dealing with conflict has led to a search for other responses. One of the most influential is the concept of restorative justice which, since its development in the late 1980s, has become a powerful voice in criminal justice discourse, providing a credible intellectual and emotional alternative to the dominant ‘law and order’ paradigm. Restorative justice emphasises the fact that it is an attempt to bring together all the affected parties (offenders, families, victims and state agencies) to discuss the harm and agree to an outcome. This is achieved through conferences, healing circles, victim-offender mediation, sentencing circles, reparation boards and the like.
In a number of states, Aboriginal courts (known as Nunga courts in South Australia, Koori courts in Victoria, and Murri courts in Queensland, depending on the local language) or circle sentencing processes have developed.
Another emerging concept is that of therapeutic jurisprudence which seeks to assess the therapeutic and counter-therapeutic consequences of law and how it is applied and to effect legal change designed to increase the former and diminish the latter. In Australia, the approach has been most evident in the development of problem-oriented courts such as drug courts, mental health courts and domestic violence courts.
The problems of discretion, disparity, desert, severity and veracity will continue to underpin sentencing debates for the foreseeable future. The ALRC sentencing reference is only another step in the process of developing public policy.
Sentencing problems can never be ‘solved’, only managed. Sentencing policy is contradictory and divided. The populist policies that assist politicians’ re-election remain appealing: presumptive and mandatory sentences, selective incapacitation, increasing controls on judicial discretion, and post-conviction orders and restrictions. In reality, they have a marginal impact upon sentencing practices. What do have an impact are community feelings, perceptions and attitudes. On the other hand, inclusive, participatory, therapeutic and rehabilitative measures and programs continue to be attractive to those who work within the criminal justice system. Finding the balance between these remains the challenge.
* Professor Arie Freiberg is the Dean, Faculty of Law, Monash University.
This article is drawn from a chapter entitled ‘Sentencing’ in D Chappell and PR Wilson, The Australian Criminal Justice System (2005) LexisNexis.
1. Fardon v Attorney-General for the State of Queensland  HCA 46; (2004) 210 ALR 50.